ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

C.P. No.D-3518 of 2015

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DATE ORDER WITH SIGNATURE(S) OF JUDGE(S)

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Mr. Naimatullah Phulpoto, J

Mr. Abdul Maalik Gaddi, J.

Date of Hearing: 24.11.2015

Date of Announcement: 02.12.2015

Mr. Yousuf Ali Sayeed, advocate for petitioners

Mr. Jan Muhammad Khuhro, AAG

Mr. Abrar Ali Khichi, A.P.G. a/w ASI/IO Javed Iqbal of PS B Section Nawabshah (Shaheed Benazirabad)

Mr. Parvez Ahmed Pirzada, advocate a/w respondent No.3 Samar Ahmed Dahri

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NAIMATULLAH PHULPOTO, J.- Through instant constitution petition, petitioners seek quashment of F.I.R. No.116/2015, registered at P.S. “B” Section, Shaheed Benazir Abad, under section 420, PPC and all subsequent proceedings taken in pursuance thereof against the petitioners/accused.

2. Brief facts of the prosecution case leading to the filing of instant petition are that one Samar Ahmed Dahri, lodged F.I.R. No.116/2015, on 03.06.2015 at P.S. “B” Section, Shaheed Benazir Abad, under section 420, PPC. Complainant Samar Ahmed Dahri in the F.I.R. has alleged that he purchased Vehicle Toyota Hilux AT Vigo Champ, bearing Registration No.KT-5541 from Indus Motors, warranty card was issued but there was fault in the vehicle. Complainant has stated that accused persons cheated him and delivered faulty vehicle. Complainant approached the accused persons but fault was not removed and he was kept on false hopes. Thereafter F.I.R. was lodged under above referred section. All the accused, except Ghulam Rasool, did not join investigation and challan was submitted against them under section 420, PPC.

3. After usual investigation, challan was submitted against the accused under section 420, PPC. The applicants/accused without approaching trial Court for premature acquittal, directly filed Constitution Petition for quashment of proceedings.

4. Mr. Yousuf Ali Sayeed, learned counsel for the petitioners, mainly argued that from the contents of F.I.R. no cognizable offence is made out. Dispute is of civil nature, it has been converted to the criminal case by complainant Samar Ahmed Dahri for mala fide reasons. He has argued that complainant had purchased the new vehicle from the petitioners and allegation of cheating by the petitioners/accused is false. Lastly, it is argued that trial of accused would amount to unnecessary harassment.

5. M/s. Abrar Ali Khichi, learned A.P.G., Jan Muhammad Khuhro, learned A.A.G. and Parvez Ahmed Pirzada, learned counsel for the complainant strongly opposed the quashment of F.I.R./case and argued that case has been challaned. There is sufficient material/evidence against the accused. It is also argued that petitioners/accused have approached directly to this Court for quashment of proceedings, without approaching the concerned Civil Judge/Judicial Magistrate for their premature acquittal under section 249-A, Cr.PC. It is also argued that all accused, except accused Ghulam Rasool, have not surrendered before the trial Court and the petition is not maintainable.

6. We have carefully heard the learned counsel for the parties and perused the relevant record.

7. From contents of F.I.R. No.116/2015, registered at P.S. “B” Section, Shaheed Benazir Abad, under section 420, PPC, prima facie, alleged offence is made out. This Court cannot stifle and throttle the prosecution case at its initial stage when ingredients of offence charged in F.I.R. are prima facie made out. In this case, learned A.P.G. placed on record the copy of report under section 173, Cr.PC, which reflects that accused did not join the investigation, except accused Ghulam Rasool, and in the final report/challan accused Asad Abdullah, Parvez Ghias, Iqbal Shah, Mir Maqbool and Junaid Khan have been shown as absconders. Learned counsel for the petitioners/accused on the query of the Court informed that accused Asad Abdullah, Parvez Ghias, Iqbal Shah, Mir Maqbool and Junaid Khan have not applied for bail but approached this Court directly for quashment of the proceedings pending in the Court of Civil Judge/Judicial Magistrate, Shaheed Benazir Abad. Contention of learned counsel for the petitioners/accused that dispute is of civil nature, it is for the trial Court to examine the evidence deeply. Determination of correctness or falsity of the allegation leveled against petitioners/accused in prosecution case, the consequent determination of the guilt or innocence of accused and ultimate conclusion regarding their conviction or acquittal is an obligation casts on the trial Court on the basis of evidence likely to be produced at the trial. Honourable Supreme Court in the case of A-Habib Ahmed V/s MKG Scott Christian and five others reported in PLD 1992 SC 353 held as under:-

“Undoubtedly one primary question which the High Court had to face immediately on entertaining a case like the present one is: whether, the ordinary course of trial before the court concerned should be allowed to be deflected through an approach to its special of inherent jurisdiction -– the writ jurisdiction under Article 199 of the Constitution is one of them. The basic rule was laid down by this Court in the well kwon case of Ghulam Muhammad v. Muzammal Khan PLD 1967 SC 317 and it was ruled that if prima facie the offence had 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”. It was also held that the inherent jurisdiction of the High Court is not an alternative jurisdiction or additional jurisdiction. It is only in the interest of justice to redress grievances for which no other procedure is available. The power given by section 561-A, Cr.P.C., it was held can certainly not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statue.” Undoubtedly, the case of Ghulam Muhammad had come before the Supreme Court through an interruption by the High Court under section 561-A, Cr.P.C. The order of the High Court quashing the proceedings before the trial Court was set aside and it was directed that the criminal cases were to proceed before the Court concerned in accordance with the normal law.”

8. In the recent judgment in the case of DIRECTOR GENERAL, ANTI-CORRUPTION ESTABLISHMENT, LAHORE and others versus MUHAMMAD AKRAM KAHN and others (P L D 2013 Supreme Court 401), the Honourable Supreme Court has observed that, “the law is quite settled by now that after taking of cognizance of a case by a trial court the F.I.R. registered in that case cannot be quashed and the fate of the case and of the accused persons challaned therein is to be determined by the trial court itself. It goes without saying that if after taking of cognizance of a case by the trial Court an accused person deems himself to be innocent and falsely implicated and he wishes to avoid the rigours of a trial then the law has provided him a remedy under section 249-A/265-K, Cr.PC to seek his premature acquittal if the charge against him is groundless or there is no probability of his conviction.”

9. There is also another aspect of the case, a resort to the provisions of Article 199 of the Constitution, seeking quashment of criminal case pending in the competent court of law, is an extraordinary remedy which can be invoked only in extraordinary circumstances and the said provisions could never be exploited as a substitute for the prescribed trial or to decide the question of guilt or innocence of accused persons on the basis of material. In this case, admittedly, petitioners/accused have also not exhausted alternate remedy by approaching the trial Court in the first instance. Moreover, four (04) accused persons have not surrendered before trial Court and they have been shown as absconders. Therefore, at this stage quashment of proceedings amounts to throttle the prosecution hence, while relying upon above cited authority, we have no hesitation to hold that there is no merit in the abovementioned petition. The same is dismissed.

J U D G E

Gulsher/PA