This is a petition under section 561-A, Cr. P. C. By Din Muhammad petitioner for the quashment of criminal case in re : Muhammad Sharif v. Din Muhammad under section 380, P. P. C. Pending in the Court of Mr. Muhammad Farooq Syed, Magistrate Ist Class, at Sargodha.
2. The brief facts of the case are that about a year prior to the filing of the complaint, the petitioner carried away the licensed S. B. Gun of respondent No. 1 together with its licence from the respondent's house; that respondent No. 1 lodged an F. I. R. At Police Station, Sillanwali in respect of the said theft on 7-12-1974; that the said case was investigated and the stolen gun was recovered from the petitioner; that the Thanedar took no action against the petitioner and submitted report for cancellation of the case. It was also alleged that the petitioner being a Police Officer had used his influence as a result of which the police has not prosecuted him.
3. Learned counsel for the petitioner has submitted that there was a dispute between the petitioner and respondent No. 1 over a four marlas plot situate in Shah Nicdar, District Sargodha. Respondent No. 1, in .Collusion with Sbanakhat Ali and Idrees, had got the said plot mutated in the names of the said two persons after falsely verifying some other person as the petitioner before the Revenue Officer on 9-1-1974, whereas the petitioner was then noted in Muzaffargarh and was present on duty there. It is stated that the petitioner reported this matter to the Deputy Commissioner on 22-5- 1974, and then filed a civil suit against respondent No. 1 in a Court at Sargodha, which is pending. It was contended that apprehending that the said suit may be decided against him and that be may be prosecuted for wrongfully identifying some other person for the petitioner, the present proceedings have been brought by the complainant to harass the petitioner. It was lastly submitted that respondent No. 1 was his brother, has visited the petitioner at D. G. Khan on 25-8- 1974 to press him to withdraw the application dated 22-5-1974 which he had filed before the Deputy Commis--sioner, Sargodha, but the petitioner having refused his request, the said respondent had returned to Sargodha leaving his S. B. Gun together with its licence with the petitioner for repairs at D. G. Khan. It was submitted that after the petitioner reminded his brother a number of times to collect his gun, which he has failed to do, the petitioner on 21-10-1974 deposited the same with the Police Station City, Dera Ghazi Khan, as per copy of the report in Roznamcha and the receipt issued by the said police station as annexed with the petition and marked 'C' and `D' respectively. In the light of these facts, it was submitted that the petitioner was not guilty of theft and that the case be quashed. Mr. Mahfooz-ul-Haq, learned counsel for respondent No. 1 submitted that the petitioner had not moved the trial Court under section 249-A, Cr. P. C. For the acquittal of his client and that, therefore, the proceedings before this Court were barred. He cited Rashid Ahmad v. Rifat Sultana Criminal Miscellaneous No. 611/Q/77 decided by Mr. Justice Muhammad Hassan Sindher on 21-6-1978.
4. I have given my anxious consideration to the arguments advanced by the learned counsel for the petitioner and the respondent. The decision in Rashid Ahmad v. Rifat Sultana cited above, is correct to this extent that it desires, as a salutary principle, that an accused should first move the trial court under section 249-A, Cr. P. C. For his acquittal, if he considers that here is no case against him or one which if allowed to continue, will ultimately fail, before he moves the High Court in its extraordinary Jurisdiction under section 561-A, Cr. P. C. But if, as suggested by the learned counsel for the complainant, Rashid Ahmad v. Rifat Sultana is intended to lay down the law that the powers of this Court to quash cases under section 561-A, Cr. P. Chave now become totally barred, because of the enactment of section 24. A, Cr. P. C., then I would beg to differs every Court, whether civil or criminal, in the absence of any express provision in the procedural law enacted to govern its working, is deemed to possess inherent powers, within the body of its very constitution, to do complete justice. Section 249-A, Cr. P. C., which has recently been enacted, is only declaratory of the said principle. By virtue of this section, the accused now has a speedy remedy in the original jurisdiction to seek his immediate emancipation from a groundless charge and not face the dilemma of having pursue far away from the locale of his trial the same relief under section 561-A, Cr. P. C. Which is only available from this Court. Both sections 249-A, Cr. P. C. And 561-A, Cr. P. C. Do not basically lay down any rule of procedure; they are grounded in natural law and recognize the existence of inherent powers possessed by the criminal Courts, within the body of their very constitution, to do right and rid an accused from every, soundless charge. However, section 561-A, is larger in scope and intent than section 249-A, Cr. P. C. Section 561-A, Cr. P. C. Recognizes the inherent powers of the High Court, both as a Court of record and also in view of is general jurisdiction over all the criminal Courts subordinate to it, to compel the compliance of the Code, or to give effect to any order thereunder, to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The power, therefore, to free an accused from a groundless charge in criminal proceedings faced by him is, therefore, co-extensive both with the trial Court and the High Court. In line with the principle, therefore, that when a power is co-existent, the litigant must first resort to the remedy in the Court of the lower jurisdiction, in ordinary circumstances the accused must first seek his redress from the trial Court. Only in very exceptional uses the accused should seek his remedy from the High Court. The High Court, therefore, has power under section 561-A, Cr.
P. C. To quash case but it will only exercise this right in extraordinary and exceptional cases-where sending the accused to the trial Court would only perpetuate, if not further exacerbate the abuse or injustice, rather than eliminate it. However, matters other than quashment but otherwise falling within the jurisdiction of section, 561-A, Cr. P. C. Can be brought to the notice of the High Court straightaway for necessary redress under section 561-A, Cr. P. C.
5. The petitioner should, therefore, first file his application under section 249-A, Cr. P. C. Before the trial Magistrate. The petitioner should admit his application preferably on the same lines as the present petition under section 561-A, Cr. P. C. Submitting all the facts and documents as e relevant, duly supported by his affidavit, if needs be, to show that even the facts, as alleged, and the preliminary evidence recorded, there is no prima facie case against hire or one which if allowed to proceed will ultimately fail.
6. Under section 249-A, Cr. P. C. The learned trial Magistrate ha powers, notwithstanding anything contained in Chapter XX of the Criminal Procedure Code, to acquit one accused at any stage of the case if, after giving notice of the said application to the counsel for the State or the complainant or any particular person concerned and securing his reply (if needs be on affidavit) and after hearing the parties, he considers that the charge is ground--less or that there is no probability of the petitioner being convicted of any offence before him. The words of the section enable the Magistrate to deal with such an application at any time, irrespective of whether the charge has been framed or not. Nothing in the section will prevent the Magistrate, where a charge has not been framed by him or where a charge has been framed but no material evidence recorded, from acquitting the accused, if, after hearing arguments and examining all relevant material before him, he considers that there is no prima facie case against the accused or one which, even if it is put to trial, will certainly fail. In such cases a Magistrate may, if considered desirable, record some evidence on any limited point relevant for the purposes of the decision of the said application, but this should be avoided as far as possible so as not to convert this limited investi--gation into "a trial within a trial". In cases where a charge has been framed and some material evidence has been recorded, the Magistrate can also acquit the accused under section 249-A, Cr. P. C. If from the evidence recorded he comes to the finding that no case has been made out against the accused and the evidence of persons whose statements have not been recorded would not be able to improve upon the case, even if called and examined. But it is of the essence of the intent behind this new section, which has been recently added, that such an application must be dealt with and decided summarily with the utmost speed and in the shortest possible time and lengthy delays and tardy procedures characteristic of normal trials should be scrupulously avoided.
The petitioner should, therefore, first move the trial Court under section 249-A, Cr. P. C. The present petition before this Court is premature and no special and exceptional circumstances exist in the instant case to compel me to invoke my extraordinary powers under section 561-A, Cr. P. C.
7. In view of the above, this petition is premature and is dismissed.