' Applicant, through this application is seeking quashment of proceedings ', out of Crime No,27 of 1999 of Police Station A.C.E. Larkana (State v. Aijaz Ali and others) pending in the Court of learned Special Judge Anti-Corruption, Larkana.
1. The brief facts of the case are that on the basis of the complaint submitted before the Anti- Corruption Authorities by one Muhammad Nawaz Kalhoro, F.I.R. Was registered by Iqbal Ahmed Qureshi, Assistant Director, Larkana on 21-5-1999, alleging therein that some Agriculture land measuring 27-20 Ghuntas situated in Deh Miani Nihal Tapa Loungai Taluka Larkana was purchased by Mumtaz Ali, the father of complainant as per registered deed No,612, dated 23-1-1949 from one Ayou Mal and others and such confirmation was also obtained from the Custodian Department, Larkana, vide Order No,89, dated 23-11-1996 in custodian case Appeal No,89 of 1956 whereby the purchase of the land by Mumtaz Ali Kalhoro was declared good. However, the said Mumtaz Ali could not get his above deed entered in record of rights and died. The applicant/complainant after attaining the age of majority, approached the Tapedar of the beat, namely Dodo Khan, in presence of witnesses for getting above said deed of his father entered in the record of rights. However, Tapedar demanded bribe of rupees one lac per Jeraib, for mutation, which was refused by the complainant. Later on the applicant came to know that some of the survey numbers admeasuring 19-12 acres were mutated in the name of claimant Kanwar Muhammad Umar Rajput vide entry No,738, dated 23-2-1989 of VF-VII Deh Miani Nihal Taluka Larkana.
' It is further alleged in F.I.R. That during verification it was proved that Tapedar Deedar Hussain falsely and fraudulently kept said entry in favour of claimant Kanwar Muhammad Umar, whereas these numbers were already purchased under a registered deed by the father of applicant.
Tapedar Deedar Hussain issued Fard (Sale Certificate) in the name of claimant Kanwar Muhammad Umar who was shown to have sold out these survey numbers to one Karim Bux Chandio as per registered deed. Subsequently, this Tapedar with a mala fide intention kept entry No,744, dated 1-3-1989 in respect of said land in the VF-VII-B in favour of Karim Bux Chandio. Both the entries Nos.738 and 744 of VF-VII-B of Deh Miani Nihal Taluka Larkana were denied to have been attested by Mr. Imdad Ali Janwari, the then Mukhtiarkar Larkana who disclosed that both the entires bear his forged signatures. Thereafter, such F.I.R., was lodged under sections' 468, 4771-A, 120-B, P.P.C. Read with section 5(2) Act II of 1947. The applicants, alongwith other co-accused were facing trial before the learned Special Judge Anti-Corruption, Larkana in Case No,95 of 2000.
2. After dismissal of their application under section 249-A, Cr.P.C. By the learned trial Court, the applicants have moved the instant application for seeking quashment of the proceedings.
3. It has been contended by the learned counsel for the applicants that the F.I.R. Does not disclose any offence, the alleged offences are non-cognizable and as such could not be investigated by the police, the proceedings have been initiated in violation of the provisions of section 195, Cr.P.C.
Learned counsel further argued that on the same set of allegations co-accused Abdul Fatah has been acquitted by the trial Court under section 249-A, Cr.P.C. He next contended that since the complainant has withdrawn his direct complaint due to lack of evidence, State case could not be proceeded. Thus, it was urged that the proceedings be quashed as the same amount to abuse of the process of Court. He has relied upon the authority reported in 1983 PCr.LJ 1357.
4. On the other hand, learned counsel for the State has opposed the prayer for quashment and contended that the proceedings have been initiates in accordance with the law, prima facie, criminal offence has been made out, inherent powers of High Court under section 561-A, Cr.P.C. Are meant to secure the ends of justice and not to circumvent the process of law.
5. I have considered the arguments advanced by the learned counsel and perused the material placed on record.
6. The applicants in this case alongwith co-accused persons were involved in Crime No,27 of 1999, Police Station A.C.E. Larkana under sections 468, 477-A, 120-B, P.P.C. Read with section 5(2) Act II of 1947. After registration of the F.I.R. investigation was conducted and after collecting sufficient evidence a challan was submitted in the Court of learned Special Judge, Anti-Corruption, Larkana on 29-5-2000 whereby the accused alongwith five co-accused persons was required to stand trial for the alleged -offences. According to the allegations, all the co-accused in connivance with each other committed the criminal conspiracy and A committed the offence alleged in the F.I.R. And challan. In challan as many as 11 P.Ws. Have been cited. Prima facie sufficient evidence has been collected to implicate the accused persons. In the circumstances it cannot be assumed that no case has been made out or that prima facie offence has not been committed.
7. In order to deal with the second contention of the learned counsel for the applicant that the cognizance in the matter by the Court was not competently taken it will be appropriate to reproduce the relevant portion of section 195, Cr.P.C.
195.---(1) No Court shall take cognizance.
(c) Prosecution for certain offences relating to documents given in evidence.- -- Of any offence described in section 463 or punishable under section 471, section 475 or section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate.
8. From bare perusal of the above provisions it will be evident that in the offences as referred above, the proceedings cannot be initiated except upon a complaint in writing of such Court or some other Court to which such Court is subordinate if in case such offence is alleged to have been committed by the party to any proceedings in respect of documents produced or given in evidence. However, under subsection (2) the Registrar or Sub-Registrar appointed under the Registration Act, 1908 does not constitute a Court. On perusal of the F.I.R. As well as challan it is abundantly clear that the offence alleged against the accused persons was not committed during the Court proceedings or for that matter the documents alleged to have been forged were not produced in evidence in the Court. Though the sections which have been applied in the present F.I.R./ challan are not covered by subsection (1)(c) of section 195, Cr.P.C., yet the contentions of the learned counsel in so far as the taking of cognizance is concerned are absolutely misconceived.
The authority relied upon by the learned counsel for the applicant is distinguishable on two counts; firstly that the proceedings in the said case were quashed as the forger alleged to have taken place during the Proceedings before Rehabilitation Authorities and the learned single Judge of this Court was of the view that the proceedings were bad and secondly; the said case was in respect of the sections 468, 471, 464, 420 and 419 read with section 29 of the Displaced Persons (Land Settlement) Act, 1958 whereas the proceedings in the case in hand have been initiated against the applicants and others under sections 468, 477-A, 120-B, P.P.C. Read with section 5(2) Act II of 1947. In this view of the matter the authority relied upon by the learned counsel is quite distinguishable.
9. The next argument advanced by the learned counsel for the applicant is that the P.W.
Muhammad Nawaz on whose instance the present F.I.R. Was registered, in fact, prior to submission of challan of this case has filed a private complaint in the Court of learned Special Judge Anti- Corruption, Larkana which was withdrawn by him under section 248, Cr.P.C., and therefore, the pending proceedings tantamount the abuse of process of Court as no one is to be tried and punished twice for the same offence.
10. I am conscious of the safeguard provided under Article 13 of the Constitution of Pakistan which provides that no person shall be prosecuted or punished for the same offence more than once.
11. In order to attract the operation of Article 13 of the Constitution, the applicant must have already been prosecuted or punished for the same offence when proceedings are taken before the second Court. Prosecution or prosecute in the special sense of law means (a) to follow, pursue, to follow to the end, come to seek, to obtain, to enforce or the like, by legal process, to prosecute a right or claim in a Court of law; (b) to pursue or institute legal proceedings against judicial subjecting to accused of some crime or breach of law, or to pursue for redress or punishment of a crime or violation of law, in due legal fault before a legal tribunal, the carrying on of a judicial proceedings on behalf of complaining party, the institution and continuation of a criminal suit involving the process of exhibiting formal party against an offender before a legal tribunal and pursue them to final judgment on behalf of the State or Government.
12. Prosecution means a proceedings either by way of indictment or information, in the criminal Courts, in order to put an offender upon his trial.
13. The word punish occurring in Article 13 would mean 'to cause the offender to suffer for the offence" or "to inflict penalties on the offender" or "to inflict penalty for the offence". The word punishing denotes or signifies some offence committed by the person who is punished.
14. For the above purpose provisions of section 403, Cr.P.C. Are also to be taken into consideration which provide that the persons once convicted or acquitted not to be tried for the same offence.
15. In the instant case the applicant/accused was neither tried by the Court nor punished but the complainant withdrew his private complaint on his own. The said complaint was withdrawn on 18- 12-1999 on the ground that the P.Ws. Cited by the complainant were not inclined to support the direct complaint. This apparently was done while the complaint filed by the complainant before the Anti-Corruption Authorities was till being investigated and atter collecting sufficient evidence the challan in the said case was produced before the competent Court on 29-5-2000. From the above narrated circumstances, by no stretch of imagination it can be presumed that the applicants were prosecuted or punished. The contention of the learned counsel in the circumstances is absolutely ill-founded and untenable.
16. There is hardly any doubt that section 561-A, Cr .P.0 . Confers upon this Court inherent powers to make such orders as are deemed necessary to give effect to any order under the Criminal Procedure Code or to prevent abuse of process of Court. The paramount consideration in exercising the powers under section 561-A, Cr.P.C. Is that such an order would prevent the abuse of the process of any Court or otherwise it would secure the ends of justice. It is well-settled that inherent jurisdiction of High Court is neither alternative nor additional in its character and is to be rarely invoked in the interest of justice so as to seek redress of grievance for which no other remedy is available, however, such jurisdiction must be invoked in exceptional circumstances. It has been consistently held that the provisions of section 561-A, Cr.P.C. Should not be used to obstruct or divert ordinary course of Criminal Proceedings. Honourable Supreme Court in the case of A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353 was pleased to observe that if prima facie offence has been committed justice required that it should be enquired into and tried. If the accused are not as a result of the trial found guilty, they have a right to be declared as "honourably acquitted by a competent Court". On the other hand, if the evidence against the accused discloses a prima facie case then justice clearly requires that the trial should proceed according to law. The apex Court in yet another case of Muhammad Khalid Mukhtar v. The State PLD 1997 SC 275 was pleased to reiterate the same principles and was pleased to observe as under:-- "As observed in the case of Asif Ali Zardari (1994 SCM R 798) the powers under section 561-A, Cr.P.C.
Can be exercised to prevent abuse of the process of any Court or to secure the ends of justice.
Such powers cannot be exercised in mechanically or in every case where there is allegation of false implication or of the evidence being false. Exercise of such powers cannot further the ends of justice, if an exercise is undertaken at pretrial stage to determine whether the prosecution evidence likely to come on record is true or false. In the case of Raja Haq Nawaz v. Muhammad Afzal and others (PLD 1967 SC 354), it was held that quashment of proceedings at an early stage gives an unfortunate impression of stifling of criminal prosecutions, by exercise of an extraordinary power which is given for the dispensation of complete justice, in the forms provided by law. Similar view was taken in the case of Gian Chand v. State (1968 SCM R 380) where it was observed that determination of the guilt or innocence of an accused, depends on totality of facts and circumstances revealed during the trial, and when such a stage had not been reached, the application for quashment of the proceedings in the trial Court was rightly rejected by the High Court."
17. As a result of above discussion I have reached irresistible conclusion that the case in hand is not a fit case wherein the inherent powers under section 561-A, Cr.P.C. Need to be exercised. For the aforesaid reasons, the present application is liable to be dismissed which is accordingly dismissed.
18. At the end I must refer to the contention raised by the learned counsel for the applicant that on same evidence the learned trial Court has acquitted co-accused Aftab Ahmed. Learned counsel for applicant has also placed on record the order, dated 27-10-2000 passed by the learned trial Judge on the application moved by co-accused Abdul Fatah under section 249-A, CrP.C. From the perusal of the order, it appears,that the order passed by the learned trial Judge was beyond the scope of section 249-A, Cr.P.C. Warranting examination of its propriety.
' In this view of the matter, taking suo motu notice of the said acquittal of Abdul Fatah Mughal, I direct issuance of notices to the said co-accused and so also the complainant.