JUDGMENTJAVED IQBAL, J.- This is petition preferred under Section 561-A Cr.P.C, with the following prayer:-Tt is therefore, most respectfully prayed that this honourable court may be pleased to call for R & P of the complaint case filed by the respondent against the petitioner pending in the court of Judicial Magistrate-II, Quetta, and after having satisfaction be further pleased to order for quashment of the. Proceedings, till then the proceedings pending as such may be stayed".
2. Briefly stated the facts of the case as mentioned in the memo of petition are that the petitioner is a business man of high reputation and that in course of business transaction M/S Ejaz Khan Irshad Khan and Sons, through its Proprietor Mr. Ejaz Khan resident of Hyderabad executed an agreement with the petitioner's firms, /With the name and style of M/S S. Ehsan Ali Brothers Quetta, for export of 300 Metric Tons Onion to Iran as Mr. Eja2 was in possession of Export Permit issued in his favour by the Export Promotion Bureau, Government of Pakistan. Mr. Ejaz Khan also executed General Power of Attorney in favour of the petitioner besides the agreement as mentioned above. It is alleged that Mr. Ejaz Khan mis-appropriated huge amount from the Bank which resulted in mistrust and consequently the petitioner severed his business relations with Ejaz Khan, who retaliated and got registered criminal case bearing F.I.R. No. 148/76 under Sections 419/420/409 and 109 P.P.G at City Police Station Quetta. Mr Ejaz Khan also lodged a complaint to FJA. Which was consinged to record due to want of jurisdiction. There was no progress in respect of case lodged at Police Station City Quetta, as it was that of a civil nature. It is also averred that after lapse of 17 years Assistant Director F.I.A. CBC issued a notice and in response whereof all necessary details furnished, but another notice was issued on 15.10.1993 whereby the petitioner was directed to appear before the Enquiry Officer F.I A. C.B.C. Quetta, on 23.10.1993. However, the petitioner contested on the plea that F.I A. Was having no jurisdiction in the matter already considered and dosed. That on 4.1.1994 the petitioner received another notice to appear before the Judicial Magistrate First Quetta, on 10.1.1994. The petitioner appeared before the above mentioned forum and came to know that a complaint under Section 174 PPC was made against him and petitioner was directed by the learned Judicial Magistrate on 10.1.1994 to appear before Assistant Director FJA. On 11.1.1994, the needful was done and Assistant Director FJAlold him to appear on 18.1.1994, but he could not appear due to certain personal reasonings. On 16.1.1994 learned Judicial Magistrate issued a warrant of arrest against the petitioner hence this . Quashment has been sought.
3. It is urged emphatically by Mr. Muhammad Ashraf Khan Tanooli Advocate, on behalf of the petitioner, that prima fade the matter is that of a civil nature, which was already investigated and consigned to record due to want of jurisdiction and furthermore, that the case registered vide F.I.R, bearing No. 148/76 was also investigated and finally closed but no report was submitted in pursuance of the Provisions as contained in Seddon 173 Cr.P.C. It is next contended that the Assistant Director FJA. Is not legally empowered to investigate into a matter already closed and without any legal or moral justification. It is further argued that there is no iota of evidence or incriminating material available against the petitioner to call for further investigation by FJA. It is further pointed out that no FJ.R. Was got lodged with FJA hence the petitioner cannot be forced to appear. It is further contended that initially the matter was pending before Special Railway Magistrate, who is in fact having the jurisdiction which was subsequently transferred to Judicial Magistrate Quetta, without any lawful basis and now the proceedings are simultaneously being commenced by the Special Railway Magistrate and Judicial Magistrate. It is also argued that the Provisions as contemplated under Sections 200, 202, and 204 Cr.P.C. Have not been complied with.
4. The above mentioned position has been controverted streneously by Mir Aurang Zaib Advocate, who appeared on behalf of learned Advocate General and submitted that keeping in view the manifold prayer the provisions as contained in Section 561-A CnP.C. Cannot be invoked. It is also argued that a Revision should have teen filed before the learned Sessions Judge for the reedressal of grievance if any. It is further pointed out that in case no case is made out after submission of challan an application may be moved under Section 265-K Cr.P.C. Lastly, it is argued that this court has no jurisdiction to entertain application, as challan is yet to be submitted.
5. Mr. Mushtaq Anjum Advocate, appeared on behalf of learned Deputy Attorney General and contended vehemently that a Revision petition could have been filed instead of an application under Section 561-A CrJ'.C. It is next contended that enquiry conducted by FJA. Is yet to be concluded and could not be finalized due to non co-operation of the petitioner, who has been deliberately avoiding to attend the FJA. Office in order to get the matter prolonged. It is also pointed out that there was no other alternative available to FJA. But to file a complaint under Section 174 PPC presently pending before Judicial Magistrate-!! Quetta. It is also contended that after the promulgation of Offences in respect of Banks (Special Court) Ordinance, 1984 the FJA. Is competent to enquire into the matter. It is further contended that at this pre-mature stage this petition has been moved to get the matter prolonged and without any lawful basis.
6. I have carefully examined the respective contentions as adduced on behalf of the petitioner and for State in the light of relevant Provisions of law and available record. I may make it clear at the out set and as it is well established by now that the inherent jurisdiction of this court as conferred upon it under Section 561-A Cr.P.C. Should not normally be invoked, where another remedy is available. The jurisdiction so conferred and the powers so vested ought to be exercised only to prevent abuse of process of court and in order to promote the interest of justice. An other important aspect which must not escape unnoticed is that the High Court may quash, the criminal proceedings initiated on baseless and frivolous complaint which does not contain any definite accusation or where apparently no offence is made out but where on face of complaint a prima fade case is made out then the question of quashment does not arise when the evidence is yet to be recorded, as it would amount to stifling of criminal proceedings. In my view the quashment on a pre-mature stage would not be fair which amounts to depriving the complainant from a proper opportunity to establish his complaint. It would also not be desirable to quash the proceedings at initial stage when a prima facie case is made out for the reasons that in such an eventuality the matter falls within the discretional ambit of trial court to thrash out the evidence to see and decide whether the accusation is having any substance br otherwise. For the quashment of criminal proceedings the High Court must be able to conje to a dear condusion that either the accused is innocent or that the conviction is quite impossible. (PXJ>. 1975 Karachi-231 + PX.D. 1961 Karachi 220 + P.1 1976 Karachi 206).
7. . The petition under consideration has-been examined in the light of legal position, as explained herein above. It is to be noted that a case was got registered by the complainant at CityPolice Station Quetta, which could not be properly investigated and inspite of lapse of many years, the complainant is yet to know the fate of his complaint, which amount to mockery of law. The progress in the case for certain obvious reasons remained negligible for no fault of the complainant The petitioner first obtained bail before arrest and subsequently got it confirmed. The complainant also approached F.I A. Authorities, but after a considerable long time the complaint was filed due to want of jurisdiction. It however, reveals from the enquiry report that letter dated 9.9.1976 was issued by Sub Inspector of Police, who was not competent to do so. The relevant portion of the said report is reproduced hereunder for ready reference:- "8. The Director FIA Quetta 2Lone Quetta has directed the Deputy Director FIA Quetta to confirm/verify the letter dated 9th September, 1976, issued from the Office of the Deputy Director FIA Quetta. The despatcher Mr. Jamal Nasir of FIA Crime Circle Quetta has examined the despatch register for the year 1976 and officially reported explained that neither the letter in question has issued from the offence of the Deputy Director FIA Quetta, nor it bears the despatch number. On receiving the remarks of Despatcher of Deputy Director FIA Quetta the letter dated 20th and 24th October, 1993 were submitted to the Assistant Director FIA Quetta with request to take legal action against the alleged person under the rules. This false letter dated 9.9.1976 was issued for some mala fide intention with the abetment of signing authority (Malik Sarwar). The signing authority was serving as Sub Inspector/Inspector legal in FIA during the year 1976 and he was not the Deputy Director FIA Quetta as indicate in the false/forged letter dated 9.9.1976. Further more Mr Sarwar Khan was not officially authorised to issue direct letter to the accused in connection with closure of enquiry iagainst him. The signing authority has also directly involved in the criminal offence/case and he also abused his official powers in the capacity of Federal public servant and defame this Agency. The legal action should also be taken against him after obtaining the, necessary permission from the competent authority. The Assistant Director FIA, Hqrs. Quetta also submitted a comprehensive letter No. AD/FIA/CBCQ/2106-8 dated 2nd October, 1993 and suggested for taking legal action under Section 174 PPC after approval of FIA, Horse. Islamabad.
9. As obtaining false/forged letter dated 9th September, 1976 bearing signature of unauthorised person and used for the purpose of cheating. In deceiving the court authorities is sufficient documentary proof against the accused person who defrauded Mr. Ejaz Khan and companion, embezzled the huge amount with the abetment of the public servants."
8. A bare perusal would reveal that how an attempt was made to hush up the matter which ultimately succeeded but no action whatsoever was initiated against the delinquent. The complainant persued the matter vigorously and in consequence whereof the petitioner was directed to appear before FIA which not done and legal mechanism was used to get the matter protracted. Besides, a letter to F.I.A, to refrain from issuance of any further notice was also sent and more so a threat was given for lodging a complaint before Hon'ble Chief Justice Baluchistan High Court in case of repetition of such notices. The said example can be termed as glaring and bold which are sufficient to create hinderance in the smooth process of law. The provisions as contained in Section 561-A Cr.P.C, must not be jised to obstruct or divert ordinary course of Criminal Procedure (1976 Law Notes (S.C.) 430)
9. The premier contention as put forth by Mr. Muhammad Ashraf Khan Tanooli Advocate, seems to be devoid of merits that the attendance of petitioner cannot be procured by Judicial Magistrate-!!
Quetta, before whom the complaint was filed by FJA. Is pending adjudication. The learned Magistrate was fully competent to take cognizance of the matter under Section 195(a) Cr.P.C, and as such issuance of notice was within his competency and no irregularity or illegality whatsoever has been committed in doing the needful. The case titled Shahabuddin Vs. State (A.I.R. 1961 J&K 54- 55 (1961) 2 Cr. U 87, can be relied if any reference is required. Another important feature to be kept in mind is that an offence under Section 174 PPC is triable summarily and by any Magistrate. It seems a misconceived notion that a case pending before Railway Magistrate could not be transferred to any other Magistrate for favour of trial by the competent authority. The record is also suggestive of the fact that the petitioner remained absent on various occasions i.e. 28.12.1993, 10.01.1994 and 24.01.1994 when the following order was passed:- \24.1.1994,,/.,]^/SjfuJ'4'JW>tt*i//i?IA^-4.X^*^j{,'ivjyi2f(/^FIA/5.2.1994 J.*uOt/jii+jt{{URDU}} Instead of compliance the petitioner preferred to file this petition under Section 561-A Cr.P.C, and stay obtained on 13.02.1994. Let me make it dear here at this juncture that no refuge can be taken behind the complex technical procedure and substantial justice is to be done and it must not be lost sight of that ordinarily the guilt or innocence of the petitioner will eventually depend on the totality of facts and circumstances revealed during the trial. It must, however, to be noted that there must be some tengible evidence to show that the proceedings is mala fide before the High Court can quash it I may point out that proceedings cannot be quashed where the allegations in the complaint on the face of it disclose a prima fade case and the court below has done nothing except to summon the accused to answer the allegations which requires to be tested in the light of the evidence to be adduced. (PJLD. 1967 S.C. 137). There appears to be no extra ordinary and exceptional reasons to interfere at this pre-mature stage. The powers as conferred upon this Court under Section 561-A Cr.P.C, can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute and the High Court, as has repeatedly been pointed out in various cases, should be extremely reluctant to interfere in a case where competent Court of law had just taken the cognizance of the matter. I am deliberately with holding my comments on the merits of the case lest it may prejudice the case of any of the parties.
It would be too premature to give any verdict regarding civil >>r criminal nature of the case, but suffice it to say that an aggrieved person may choose any remedy for the redressal of his grievances and may be deemed fit and proper and he cannot be compelled to adopt a recourse which he does not prefer. It is well settled by now that "Section 561-A Cr.P.C, confers inherent powers on the High Court to act in and of advancement of interest of justice and to eliminate an action resulting in abuse of the process of the court It is permissible to exercise inherent powers on the satisfaction that a criminal proceeding or an action initiated in criminal proceedings, If allowed, would not advance the cause of justice and ultimately would tantamount to abuse of the process of the court In absence of such satisfaction, the High Court was not advised to act merely on conjectures, surmises, artificial suggestions or speculations" (1986 P.Cr.L.J. 2230) It is to be noted that lapse of long period since initiation of case cannot be considered as ground for quashment (P1.D. 1967 S.C. 317).
10. In view of what has been stated above, the petition is dismissed and the petitioner is directed to appear before the learned Judicial Magistrate-II, Quetta, on 5.9.1994, who shall decide the matter in accordance with law and may issue any direction as may be deemed fit and proper.