HIGH COURT OF SINDH AT KARACHI
Criminal Misc. Application No. 09 of 2015
|
DATE |
ORDER
WITH SIGNATURE OF JUDGE. |
1. For Katcha Peshi.
2. For hearing of M.A.No.
251/2015.
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Date of hearing: 10th August 2015
Date of Announcement:
August 2015
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Mr. Muhammad Jamil,
Advocate for the Petitioner
Mr. Abrar Ali Khichi, APG.
Mr. Ghulam Muhammad, Advocate for the Complainant.
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NAIMATULLAH
PHULPOTO, J.--Applicants/accused Najamuddin
Samejo, Badaruddin Samejo and Wajid Shams seek
quashment of the proceedings in Case No. 1950/2014, arising out of the FIR No.
135/2014 PS Gizri for offences under section 489-F PPC, pending in the Court of
V-Civil Judge & Judicial Magistrate, Karachi South.
2. Brief facts leading to the filing of
the instant application are that one Muhammad Farhan
lodged his FIR on 11.03.2014, in which it is mentioned that complainant is
running poultry business and he was dealing with accused Najamuddin Samejo, Wajid Shams and Dr.Barkat Boota. It is stated
that regarding business, accused Najamuddin used to issue cheques. It is
alleged that accused Najamuddin issued cheques and the same were dishonored.
The detail of the cheques and amounts is mentioned in the FIR as (1) Cheque No.
4118245,Rs.500,000/-, (2) Cheque No.4118244, Rs.500,000/-, (3) Cheque No. 4118242,Rs.14,00,000/-
(4) Cheque No.4118243, Rs.500,000/- (5) Cheque No. 2094792,Rs.229,788/- (6) Cheque
No.2094788,Rs.226,854/- (7)Cheque No. 2094780,Rs.235,216/- (8) Cheque No.9036837,Rs.148,186/-,
(9) Cheque No. 90126700,Rs.64,272/- (10) Cheque No.1906413,Rs.152,000/- (11) Cheque
No. 7651721,Rs.216,665/- (12) Cheque No.7651743,Rs. 234,000/-, (13) Cheque No. 7651720,Rs.216,665/-
(14) Cheque No.4180297,Rs.282,287/-, (15) Cheque No. 41850264,Rs.255,730/-,(16)Cheque
No.4180263,Rs.255,730/-, (17) Cheque No.2094793, Rs.249,978/-, (18) Cheque
No.9036845,Rs.364,272/-, (19) Cheque No. 2094782, Rs.262,115/- and (20) Cheque
No. 2094781, Rs.235,218/-. Thereafter,
complainant Muhammad Farhan approached the accused
persons in this regard but without any positive response. Thereafter, the
aforesaid FIR was lodged at PS Gizri on 11.03.2014 for offence under Section
489-F PPC.
3. After usual investigation, challan was submitted against the accused under Section 512
Cr.P.C. Case diaries of the trial court placed on record reflect that accused
have surrendered before Court and they are on bail.
4. Without approaching the trial Court,
for premature acquittal under section 249-A Cr.PC, the
applicant/accused have approached this Court directly under Section 561-A Cr.PC for quashment of the proceedings pending before V-Civil
Judge & Judicial Magistrate, Karachi South.
5. Mr. Muhammad Jamil,
learned advocate for applicants/accused contended that there was business
between the complainant and the accused persons and civil dispute has been
converted to the criminal litigation by complainant. It is argued that even
from the contents of the FIR alleged offence is not made out. Learned counsel
for the applicants/accused argued that with regard to said dispute, Civil Suit
No. 719 of 2013 filed by applicant/accused Najamuddin is pending against
complainant Muhammad Farhan and others before this
Court. Learned counsel for the applicants/accused further argued that there is
no probability of conviction of the applicants/accused in the case. In support
of the contentions, reliance has been placed upon the cases reported as Shaikh
Muhammad Taqi vs. The State (1991 P.Cr.L.J 963), A. Habib Ahmed
vs. M.K.G. Scott Christian and 5 others (PLD 1992 S.C 353) and Miraj Khan vs. Gul Ahmed and 3
others (2000
S.C.M.R 122).
6. Mr. Abrar Ali
Khichi,
learned Assistant Prosecutor General Sindh argued that cheques were issued by
accused Najamuddin, remaining accused are his partners and the cheques were
dishonored. It is argued that from contents of the FIR, ingredients of Section
489-F PPC are made out. Lastly, it is argued that
applicants/accused had not approached the Trial Court in the first instance and
have approached this Court directly. In support of the contentions
reliance has been placed upon the cases reported as Dr. Sher Afghan Khan Niazi versus Ali S. Habib and
others (2011 SCMR 1813) and Director General, Anti-Corruption
Establishment, Lahore and others versus Muhammad Akram Khan (PLD 2013
Supreme Court 401). Mr. Ghulam Muhammad Advocate for complainant
adopted the arguments of learned Assistant Prosecutor General Sindh.
7. I have carefully heard the learned
counsel for the parties, perused the contents of the FIR, 161 Cr.P.C statements
of the PWs and relevant record.
8. From perusal of the contents of the FIR
and documentary evidence, prima facie offence under Section 489-F PPC is made
out. During investigation accused were also found involved in the commission of
offence by the investigating officer who has recovered the cheques issued by
accused Najamuddin and on the basis of
the sufficient material, I.O has submitted challan
against the accused under the above referred Section. As regards contention of
the learned counsel for the applicants/accused that civil suit filed by accused
Najamuddin is pending before this Court and criminal proceedings have been
initiated malafidely. In this regard, law is well-settled
that proceedings cannot be quashed merely on the ground that civil suit has
been filed. I am fortified by the dictum laid down in the case titled Dr.
Sher Afghan Khan Niazi versus Ali S. Habib and others (2011 SCMR 1813). Relevant
portion is reproduced as under:
“We have not
persuaded to agree with the argument as advanced on behalf of the respondents
that the incident falls within the jurisdictional domain of civil court for
which a suit has been filed for the reasons that initiation of criminal action
or F.I.R. cannot be quashed merely on the ground that a civil suit has been
filed.”
9. It is an admitted fact that
applicants/accused did not approach the Trial Court under Section 249-A Cr.P.C
and directly approached this Court by filing an Application under Section 561-A
Cr.P.C for quashment of the proceedings pending before the Trial Court. It may
be mentioned here that provisions of Section 561-A Cr.P.C cannot be used to
override the express provisions of law to offer just another remedy, where a
remedy already exists or to circumvent the normal course of law. Jurisdiction
under Section 561-A Cr.PC is an extraordinary one
preserved only for extraordinary situations, which power must be exercised by
this Court sparingly with utmost care only in exceptional cases and not as a
matter of routine.
10. Apparently, there is sufficient material
against the applicants/accused to substantiate the commission of offence. At
this premature stage, it is not possible for this Court to record findings that
there is no probability of the conviction of the accused in the case. Even
otherwise, deeper appreciation of evidence is the exclusive function of trial
Court.
11. In this case, the Trial Court has already
taken cognizance of the case. It is not possible for this Court to quash the
proceedings at this stage and it would be better that fate of the accused persons challaned therein to be
decided by the Trial Court. Such principle has been laid down by the Honourable
Supreme Court in the case of Director General, Anti-Corruption
Establishment, Lahore and others versus Muhammad Akram Khan (PLD 2013
Supreme Court 401), relevant portion is
reproduced as under:
“2. After hearing the learned Additional
Advocate-General, Punjab appearing for the appellants and the learned counsel
for respondent No.1 and having gone through the record of the case with their
assistance we have found that through the impugned order the learned
Judge-in-Chamber of the Lahore High Court, Lahore had partially quashed the
relevant F.I.R. to the extent of respondent No.1 whereas partial quashing of an
F.I.R. to the extent of some of the accused persons mentioned therein is a
legal impossibility. Apart from that the impugned order had been passed by the
learned Judge-in-Chamber of the Lahore High Court, Lahore at a time when a Challan in the relevant criminal case had already been
submitted before the learned trial court and the learned Trial court had
already taken cognizance of the case. 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 sections
249-A/265-K, Cr.P.C. to seek his premature acquittal if the charge against him
is groundless or there is no probability of his conviction.”
12. It may be observed here that if accused
persons deem themselves to be innocent and falsely involved in this criminal
case, they would be at liberty to avail remedy provided to them under Section 249-A
Cr.PC before the Trial Court.
13. In the view of what has been discussed
above, this Criminal Miscellaneous Application is without merit, the same is dismissed.
JUDGE