2012 P Cr. L J 1756
[Balochistan]
Before Muhammad Hashim Khan Kakar, J
BALOCH KHAN ---Petitioner
versus
Haji AHMED SHAH and 2 others ---Respondents
Criminal Miscellaneous (Quashment) Petition No.187 of 2012, decided on 29th June, 2012.
(a) Criminal Procedure Code (V of 1898) ---
----Ss. 249-A, 265- K & 561- A---Powers of court to acquit the accused ---Scope ---Direct
petition before the High Court for acquittal of accused instead of approaching the Trial Court first---Propriety ---Powers of the Trial Court under Ss.249- A and 265- K, Cr.P.C. and that of the
High Court under S.561 -A, Cr.P.C., were co -extensive and it would be proper to approach the
Trial Court in the first instance, but it was equally true that there was nothing to bar the High Court from entertaining, in appropriate cases, an application under S.561- A, Cr.P.C., directly
in order to prevent the abuse of process of any court or otherwise to secure the ends of justice.
(b) Criminal Procedure Code (V of 1898) ---
----Ss. 249-A, 265-K & 561- A---Penal Code (XLV of 1860), Ss.420/417/423---Cheating and
dishonestly inducing delivery of property, cheating, dishonest or fraudulent execution of deed
of transfer containing false statement of consideration ---Quashment of F.I.R.--- F.I.R. recorded
despite dispute being of a. civil nature ---Effect ---Allegation against the accused (petitioner)
was that he bought land from the complainant (respondent) but failed to pay the complete amount for it and subsequently turned down the agreement and backed out from his promise ---
Contention of the accused was that the contents of the F.I.R. narrated only civil liability and
did not disclose any criminal liability---Validity ---Dispute between the parties was purely of
civil nature and an attempt had been made to convert the same into criminal proceedings with
ulterior motives ---Narration in the F.I.R. did not constitute any offence ---Accused had not
sought quashment of criminal proceedings on the ground that the charge was groundless or that there was no possibility of the accused being convicted of an offence, but on the ground that
the proceedings were ex facie without jurisdiction and continuation of the same would
constitute abuse of process of the court ---Quashment petition was therefore competent --Station
House Officer (SHO) had no jurisdiction to lodge the report and the entire exercise was coram non judice ---F.I.R. was quashed accordingly.
Abdul Ghani Mashwani for Petitioner.
Syed Mumtaz Hussain Baqri for Respondent No.1. Muhammad Wasay Tareen, Prosecutor -General for the State.
Date of hearing: 22nd June, 2012.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---Petitioner Baloch Khan son of Haji Olia has
invoked the inherent power of this Court under section 561- A of the Criminal Procedure Code,
1898 (Cr.P.C.) for quashment of F.I.R. No.18 of 2012 dated 4th May, 2012, under sections 420, 417 and 423 of the Pakistan Penal Code, 1860 (P.P.C.) registered at City Police Station, Chaman, District Killa Abdullah.
2. Precisely stated facts of the case are that aforesaid crime was lodged by respondent No.1 Haji
Ahmed Shah with the allegation that he sold a piece of land measuring 50 acres to the petitioner/accused against the sale consideration of Rs.700,000 (Rupees seven lacs only) per acre and out of total amount i.e. Rs.3,50,00,000 (Rupees three crores and fifty lacs only), Rs.50,00,000 (Rupees fifty lacs only) was paid to the complainant. However, subsequently, he turned down the agreement and backed out from his promise and failed to pay the re maining
amount, thus, the instant F.I.R. was lodged.
3. Mr. Abdul Ghani Mashwani, learned counsel for the petitioner, has contended that the very lodging of F.I.R. is outcome of mala fides and the same does not disclose any criminal liability
and the proceedings initiated on the basis of said F.I.R. ex facie is without jurisdiction and continuation of the same will constitute abuse of process of the Court, as contents of the F.I.R. narrate just a. civil liability and nothing else, as such, he prayed for quashment of F.I.R.
4. On the other hand, Syed Mumtaz Hussain Baqri, learned counsel for respondent No.1 as well as Mr. Muhammad Wasay Tareen, learned Prosecutor -General, contended that the F.I.R. was
rightly lodged against the petitioner, as' he failed t o make the payment of remaining amount.
Their second submission was that, in any case, the petitioner should have pressed into service section 249- A, of the Cr.P.C. before the trial Court.
5. To deal with the objection, namely, whether the petitioner should have approached the learned Judicial Magistrate under section 249- A, of the Cr.P.C. instead of invoking section 561- A,
Cr.P.C. before this Court. In this respect, it would be advantageous to reproduce hereinbelow both the two Sections, which speak as under: -
"249- A. Power of Magistrate to acquit accused at any stage. Nothing in this Chapter shall
be deemed to prevent a Magistrate from acquitting an accused at any stage of the case if after hearing the prosecutor and the accused and for reasons to be r ecorded, he considers
that the charge is groundless or that there is no probability of the accused being convicted of any offence."
"561- A. Saving of inherent power of High Court. --Nothing in this Code shall be deemed
to limit or affect the inherent powe r of the High Court to make such orders as may be
necessary to give effect to any order under this Code; or to prevent abuse of the process
of any Court or otherwise to secure the ends of justice.
6. A bare perusal of above quoted two sections indicates that both are couched in . different
languages and their scopes appear to be different. Section 249- A of the Cr.P.C. empowers a
Magistrate to acquit an accused at any stage of the case for the reasons to be recorded, he
considers that the charge is groundle ss or that there is no possibility of the accused being
convicted of any offences, whereas section 561- A of the Cr.P.C. lays down that nothing in the
Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the
process of any Court or otherwise to secure the ends of justice. 7. It is true that the powers of the trial Court under section 249- A of the Cr.P.C. and 265- K of the
Cr.P.C. are co -extensive with the similar powers of the High Court under section 561- A, Cr.P.C.
and it would, of course, be proper to approach the trial Court in the first instance, but it is equally true that there is nothing to bar the High Court from entertaining, in appropriate cases, an application under section 561- A, of the Cr.P.C. directly in order to prevent the abuse of process
of any Court or othe rwise to secure the ends of justice.
8. Reverting to the merits of the case, I am of the considered view that the dispute between the parties is purely
, of civil nature and an attempt has been made to convert the same in criminal
proceedings with ulterio r motives. The narration, made in the. F.I.R., does not constitute any
offence.
9. It may be observed that the petitioner has not sought the quashment of criminal proceedings on the ground that the charge is groundless. or there is no probability of the petitioner being convicted of an offence, which is a question that certainly cannot be decided without appraisal of the evidence or the material placed on record, but , in the instant ease, the quashment of criminal
proceedings is sought on the ground that the proceedings are ex facie without, jurisdiction and
continuation of the same will constitute abuse of the process of the court. Thus, the petition is competent and the prime contention of learned counsel for the respondents is devoid of any force.
In the present case, since, admittedly, SHO, City Police Station, Chaman had no jurisdiction in
the matter to lodge the report. The entire exercise was coram non judice and, therefore, F.I.R. No.18 of 2012 lodged by SHO, City Police Station, Chaman, District Killa Abdullah on the
complaint of Haji Ahmed Shah, is hereby quashed and the instant petition is allowed. MWA/58/Q
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???????Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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