Sunday, 25 October 2015

High Court cannot Quash FIR once challan is presented in Trial Court

PLJ 2014 Cr.C. (Lahore) 560
[Multan Bench Multan]
Present: Mahmood Ahmad Bhatti, J.
MUHAMMAD ASGHAR--Petitioner
versus
STATE etc.--Respondents
Crl. Misc. No. 28-Q of 2013, decided on 25.3.2014.
----S. 561-A--Inherent of powers--Quashment of FIR--Principle--It is by now well-established law that when challan has been submitted and cognizance of a case has been taken, High Court is not to interfere under Section 561-A, Cr.P.C. or in writ jurisdiction.  [P. 563] A
PLD 2013 SC 401.
Peer Masood-ul-Hassan Chishti, Advocate for Petitioner.
Ch. Khawar Siddique Sahi, Advocate for Respondent No. 2.
Date of hearing: 25.3.2014.
Order
Through this petition, Muhammad Asghar, the petitioner seeks quashing of FIR No. 67/2013 dated 07.03.2013 lodged at Police Station Ghaziabad, District Sahiwal. This FIR was lodged by one Saqlain Asad, who alleged that on the abetment of the petitioner herein, the co-accused, namely, Muhammad Azam son of Muhammad Hanif and Muhammad Asghar son of Muhammad Hanif carried out murder of his father, Bashir Ahmad and his mother, MstNusrat Parveen.
2. To state the obvious, the learned Area Magistrate sent up the case to the learned Sessions Judge, Sahiwal to make the accused face trial. The case was entrusted to a learned Additional Sessions Judge, Sahiwal, who framed the charge against Muhammad Asghar son of Muhammad Hanif, the co-accused on 03.08.2013. Needless to say, he pleaded not guilty to the charge brought against him and claimed trial. Thereupon, the testimony of the complainant, Saqlain Asad was recorded as PW-1 on 20.08.2013. He reiterated the facts narrated in the above-mentioned FIR. Towards the end of his deposition, he stated as under:
Motive for the said occurrence was that there was a dispute over agricultural holding between my father and the accused persons mentioned. The present occurrence tooklace at the instigation and abetment of Muhammad Asghar son of Muhammad Anwar, r/o Chak No. 175/9.L. I made statement before the I.O. in this regard, which was read over to me and I signed the same in token of its correctness. My statement is EX.PA. (At this stage, the learned counsel for the complainant has made request for summoning of rest of the accused persons in this case).
3. On the very same day, i.e. 20.08.2013, the learned Additional Sessions Judge, Sahiwal passed the following order:-
"Examination-in-chief of Saqlain Asad, complainant, has been recorded today as PW-1. In his statement the complainant has nominated Muhammad AzamGhulamSamdani and Abdul Ghafoor as accused by mentioning their specific roles and thereafter the learned counsel for complainant has made a request for their summoning to face trial. The request of learned complainant counsel appears to be justified, therefore, the above named accused persons be summoned for 30.8.2013 to face trial in this case."
4. On 28.10.2013, it was observed by the learned trial Court that co-accused Muhammad Azam is fugitive from law and proceedings were ordered to be initiated against him under Section 87, Cr.P.C. and his case was separated from the rest of the co-accused under Section 512, Cr.P.C. As regards the petitioner herein, the order dated 28.10.2013 reads as under:
"Accused Muhammad Asghar s/o Anwar present in Court is directed to furnish his bail bonds in the sum of Rs. 1,00,000/-with one surety in the like amount to the satisfaction of this Court. Now to come up for framing of amended charge on 18.11.2013."
5. On 25.11.2013, the amended charge was framed against Muhammad Asghar son of Muhammad Hanif, Abdul Ghafoor son of Noor Muhammad and Muhammad Asgharson of Muhammad Anwar (the petitioner herein). The petitioner pleaded not guilty to the charge pressed against him and he also claimed trial.
6. Against the above background, the petitioner has challenged the orders dated 28.10.2013 and 25.11.2013. Under the first order the petitioner was directed to furnish bail bonds in the sum of Rs. 1,00,000/-with one surety and by the second order, he was indicted for the offence of murder.
7. Learned counsel for the petitioner submits that the orders dated 28.10.2013 and 25.11.2013 passed by the learned trial Court are manifestations of an abuse of process of law. He elaborates that the petitioner herein was not summoned by the learned trial Court vide order dated 20.08.2013 in the wake of the statement of P.W.1 and no other independent order was passed to summon the petitioner. It was only a misconception on the part of the counsel who represented the co-accused that led the petitioner to appear before the Court and taking advantage of his presence, he was directed by the learned trial Court to furnish the bail bonds. He goes on to argue that even no express charge has been framed against the petitioner in the amended charge sheet dated 25.11.2013. Therefore, the proceedings against the petitioner are liable to be quashed or dropped.
8. Learned counsel for the complainant has opposed this petition moved under Section 561-A, Cr.P.C. He makes reference to the statement of Saqlain Asad PW-1 in which he clearly mentioned the petitioner as the person who instigated and abetted the murder of Bashir Ahmad and MstNusrat Parveen. He argues that this very statement made by the complainant empowered and induced the learned trial Court to summon all the accused named in the FIR. However, due to a typographical error, the name of the petitioner was omitted to be mentioned in the order dated 28.08.2013 by which, the other co-accused, namely, Muhammad AzamGhulam Samdani and Abdul Ghafoor were ordered to appear to face trial. He stresses that the name of the petitioner was dictated by the learned Presiding Officer in open Court in the presence of the counsel for the accused. That is why the petitioner appeared before the Court on 28.10.2013. As such it was not due to any misunderstanding or negligence on the part of the learned counsel for the accused.
9. From the resume of the facts, it is abundantly clear that the petitioner was named as one of the accused in the FIR, and he was clearly identified as the abettor and instigator of the crime allegedly committed by the co-accused. This much was stated again at the time of the trial, when the complainant's deposition was recorded as P.W.1. It seems to me that the name of the petitioner was omitted to be mentioned in the order dated 20.08.2013. As a matter of fact, the other three co-accused were also not mentioned by names, and their names appear to have been inserted afterwards. Be that as it may, the name of the petitioner could not be inserted either due to inadvertence or negligence on the part of the concerned Stenographer, and this also escaped the notice of the learned trial Court. At the cost of repetition, it is stated that the order dated 20.08.2013 proceeded and stemmed from the testimony of P.W.1 recorded on the very same date. This being so, if all the co-accused named by the complainant were to be summoned, there was no point in leaving the name of the petitioner out.
10. This brings me to the argument advanced by the learned counsel for the petitioner that since no specific charge has been laid against the petitioner in the amended charge sheet, he stands absolved of  the  charge  brought against him by the complainant. Suffice it to say, the petitioner is at liberty to move an application under Section 265-K, Cr.P.C. for his pre-mature acquittal. It is by now well-established law that when challan has been submitted and cognizance of a case has been taken, this Court is not to interfere under Section 561-A, Cr.P.C. or in writ jurisdiction. In this behalf, reference may well be made to the judgment of the Hon'ble Supreme Court of Pakistan reported as "Director General Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan" (PLD 2013 SC 401). The relevant portion therefrom is reproduced hereunder:
"The law is quite settled by now that after taking of cognizance of a case by a trial Court the FIR 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."
11. For what has been stated above, there is no merit in the petition, which is hereby dismissed, letting the petitioner avail of the remedy open to him under the law.
(A.S.)   Petition dismissed

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