Sunday, 25 October 2015

Powers of High Court are wide under 561-A of CRPC

PLJ 2005 Cr.C. (Karachi) 772
Present: Muhammad Afzal Soomro, J.
MUHAMMAD HANIF--Applicant
versus
STATE--Respondent
Cr. R.A. No. 150 of 2004, decided on 11.3.2005.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 435/439 & 561-A--Quashment of criminal proceedings against appellant--Justification--Object of S. 561-A Cr.P.C. whereby inherent powers have been conferred upon High Court is to do real and substantial justice and to prevent abuse of process of Court--To secure such end of justice, powers of High Court are very wide--On basis of facts admitted and patent on record no offence can be made out against appellant who is aged 60 years and stated to be patient of diabetes and hypertension as also infirm person on account of which he was unable physically to take part in physical attack on appellant--In respect of appellant there was no possibility/probability of his conviction in alleged offence--Processing pending against appellant were nothing but abuse of process of Court, therefore, the same were quashed.      [Pp. 776 & 777] A, B & C
1994 SCMR 798; 2000 SCMR 122; 2000 SCMR 125; 2000 PCr.LJ 551; 2002 SCMR 1076 and PLD 1965 SC 287, ref.
Mr. Mehmood A. Qureshi, Advocate for Applicant.
Ms. Rehana Akhtar Awan, Advocate for State.
Mr. Fazal-ur-Rehman Awan, Advocate for Complainant.
Date of hearing : 11.3.2005.
Order
By this application, filed under Sections 435 and 439 Cr.P.C., applicant, Muhammad Hanif, has impugned the order dated 29.5.2004 passed by learned VIIth Sessions Judge Karachi South dismissing the application moved by him under Section 265-K Cr.P.C., holding that the name of the applicant is clearly mentioned in the FIR and specific role has also been assigned to him together with the fact that the evidence collected by the prosecution. Prima facie, shows the involvement of the applicant and he cannot be set free without recording the evidence of the prosecution witnesses.
Brief facts leading to the filing of the present Revision Application are that on 27.2.2002, one Asim Husnain lodged FIR Bearing No. 59/2002 under Section 147/148/149/337-A(i)/324/504 PPC at Police Station Defence Karachi stating therein that on 23.2.2002 while he was present in the hotel, owned by his father, at about 12.30 a.m. owner of Ghousia namely Muhammad Hanif, having churri, alongwith Fareed Qureshi, Shahid Qureshi, Rashid Qureshi, Hafeez Qureshi and 20-25 other persons, having wooden sticks, iron rods, came. It is further stated in the FIR that Muhammad Hanif caused churri blow on the abdomen of Sajid with intention to kill him. Sajid received injuries. The complainant also received injuries on his head whereas his father and brother received internal injuries. Sajid was taken to Jinnah Hospital for treatment and medical report. Accordingly, FIR, as above, was registered.
Prior to the above said FIR on 23.2.2002 a non cognizable report was entered in the book kept under Section 154 Cr.P.C., in which the complainant stated that on the same day at about 12.30 a.m. while he was at hotel, one person alongwith 6 persons belonging to Ghousai Hotel came there and started beating him which resulted in causing of grievous injury. It was further stated in the said report that the culprits had also broken the hotel articles. However, he showed his desire to go to hospital which was complied.
Investigation followed and in due course the applicant alongwith other co-accused was sent up to stand trial where after framing of charge evidence of one witness namely Mehboob Ali Memon. MLD, out of eight was recorded. The said witness deposed that on 23rd day of February 2002 while he was performing his duty at JPMC as a Medico Legal Officer, at about 1.55 a.m. Sajid Muhammad attended his section with police letter. The following injuries were sustained by him.
1.    General condition was conscious with history of assault as alleged;
2.    The injuries are:--
(i)   abrasion 2 cm x 0.25 cm below the left eye;
(ii)  abrasion two in numbers over nose with history of bleeding but on examination there was no bleedings.
(iii) Lacerated wound 1.5 cm x 0.25 cm over the right side of umbilicus skin deep.
He further deposed that he issued provisional certificate immediately and reserved Injury No. 2 for X-ray. He produced such Provisional Certificate issued by him as Ex. 3-A. According to him, after receipt of X-ray report from the Radiologist JPMC.Karachi indicating no fracture he declared injury No. 2, having been reserved, as Shujah-e-Khafifa. Accordingly, he issued final certificate, which he produced as Ex. 3-B. In cross-examination, he admitted that all the injuries, mentioned by him in his examination-in-chief, were caused by hard and blunt substance. He further went on admitting that none of the injuries was caused any sharp edged weapon and could be self-suffered.
After examination of above prosecution witness, being contradictory to the version given by the complainant in the FIR as well as in Entry No. 46 dated 23.2.2002, recorded as non-cognizable report in the Book kept under Section 154 Cr.P.C., the applicant moved an application under Section 265-K Cr.P.C., before the trial Court where said application was disposed of with the observation that the evidence collected by the prosecution prima facie shows the involvement of the accused and he cannot be set free without recording the evidence of the prosecution witnesses.
Being aggrieved by the above order, the applicant has approached this Court under Section 435-439 read with Section 561-A Cr.P.C., invoking its revisional as well as inherent jurisdiction.
I have heard the learned counsel appearing for the applicant, learned counsel for the State and Mr. Fazalur Rehman Awan, learned counsel for the complainant.
It has been contended by the learned counsel for the applicant that the alleged victim, prior to registration of FIR (Bearing No. 59/2002), reported at Police Station Defence (vide Entry Bearing No. 46 dated 23.2.2002) that complainant stated that on the same day at about 12.30 a.m. while he was at hotel, one person alongwith 6 persons belonging to Ghousia Hotel came there and started beating him which resulted in causing of grievous injury, hence on account of his desire he was sent to hospital. It has, further, been contended by the learned counsel that on the basis of said report, Sajid was medically examined by the MLO Jinnah Hospital Karachi on 23.2.2002 and declared the alleged injuries as J.G.J. Damhan & Shajjah-e-Khafifa and therefore alleged injuries did not fall under cognizable offence. It has, further been contended by the learned counsel that in order to make the case cognizable the prosecution/complainant suppressed the above said report (Entry No. 46 dated 23.2.2002) and made another fabricated story narrated in the FIR Bearing No. 59/2002 by introducing a different version entering the name of the present applicant after five days of the incident with mala fide intention and ulterior motive while assigning him specific role of causing churry injury to the said victim Sajid whereas his was not mentioned in the said Entry. It has further been contended by the learned counsel that PW-1, Dr. Mahboob Ali Memon, clearly belied the version of the complainant, incorporated in the said FIR, by deposing that all the injuries mentioned by him in his certificate were caused by hard and blunt substance and none of the injuries observed to be caused by any sharp edged weapon and further more that the said injuries, so caused to the complainant, could be self suffered. It has, therefore, been contended by the learned counsel that perusal of said Entry Bearing No. 46 dated 23.2.2002 and deposition of PW-1 Dr. Mehboob reveals that no sharp edged injury was received by alleged victim Sajid as such version of the complainant with regard to causing churry injury to Sajid by the applicant does not have any weight. Further more, nothing was disclosed about the presence of the complainant, his father and brother on the spot by the said victim Sajid in the Entry No. 46. It has, therefore, been contended that in view of this background no case would be made out against the present applicant at the time of conclusion of trial and there is no probability of the applicant being convicted in the alleged offence. It has, next, been urged on behalf of the applicant that the complainant party has lodged the present FIR to pressurize him for compromise in a case bearing FIR No. 58/2002 which was registered at the behest of son of the applicant namely Fareeduddin against the Complainant party who, after due consideration and consultation, have got involved the applicant and his other persons in the present case. It has, also, been contended by the learned counsel that the applicant is aged about 60 years and not only is patient of diabetes and high per tension but also an infirm person on account of which is physically unable to take part in any dispute, as alleged. It has, therefore, lastly, been argued that it is a fit case where proceedings pending before the learned VIIth Addl. Sessions Judge Karachi South be quashed in respect of the applicant as there is no probability of the applicant being convicted in the alleged offence, hence proceedings, pending as above, are nothing but abuse of process of the Court. He has relied upon the cases of The State vs. Asif Ali Zardari and another (1994 SCMR 798); Miraj Khan vs. Gul Ahmed and 3 others (2000 SCMR 122); Hazrat Muhammad Khan and 6 others vs. Muhammad Zair Khan and 2 others (2000 SCMR 125); Allah Rakhio and others vs. The State (2001 P.Cr.L.J. 551); and Maqbool Rehman vs. The State and others (2002 SCMR 1076) in support of his contentions.
On the other hand, learned counsel appearing for the complainant has urged that the present Revision Application is not maintainable, at all, in as much as there are five accused persons involved in the case whereas this application has been filed only on behalf of one person. It has, further, been contended by the learned counsel that there are counter cases between the parties and both the cases are pending trial where witnesses are inter se and cases could be disposed of within 5-6 dates. Further more, the cases are being dragged only on account of the fault of the applicant and others.
Learned counsel for the State, Ms. Rehana Akhtar, adopted the arguments of the learned counsel for the complainant.
Perusal of record reveals that prior to registration of FIR (bearing No. 59/2002), victim Sajid reported at Police Station Defence (vide Entry Bearing No. 46 dated 23.2.2002) that on the same day at about 12.30 a.m., while he was at hotel, one person alongwith 6 other persons belonging to Ghousia Hotel came there and started beating him which resulted in causing of grievous injury, hence on account of his desire he was sent to hospital where he was medically examined by the MLO. Perusal of certificate issued by said MLO, Dr. Mehboob Ali Memon, reveals that injuries were declared as J.G.J.Damhan & Shajjah-e-Khafifa, which did not fall under cognizable offence.
However, this FIR Bearing No. 59/2002 by introducing a different version entering the name of the present applicant after five days of the incident assigning him specific role of causing churry injury to the said victim Sajid was registered though such assertion was not made in the said Entry. Consequently, as stated above, the medical certificate issued by said MLO (PW-1, Dr. Mahboob Ali Memon), belied the version of the complainant, incorporated in the said FIR, by deposing that all the injuries mentioned by him in his certificate were caused by hard and blunt substance and none of the injuries observed to be caused by any sharp edged weapon and further more that the said injuries, so caused to said victim Sajid, could be self suffered. Further more, perusal of said Entry Bearing No. 46 dated 23.2.2002 and deposition of PW-1 Dr. Mehboob reveals that no sharp edged injury was received by alleged victim Sajid as such version of the complainant with regard to causing churry injury to Sajid by the applicant does not have any weight. Even nothing was disclosed about the presence of the complainant, his father and brother on the spot by the said victim Sajid in the Entry No. 46.
The objection of Section 561-A Cr.P.C., whereby inherent powers are conferred upon this Court is to do the real and substantial justice and to prevent the abuse of the process of Court. To secure the ends of justice powers of this Court are very wide. In the case of M. S. Khawaja vs. The State (PLD 1965 SC 287) following observations were made by the apex Court:--
"To quash a judicial proceeding in order to secure the ends of justice would involve a finding that if permitted to continue, that proceeding would defeat the ends of justice, or in other words, would either operate or perpetuate an injustice. To find an abuse, it would be necessary to see in the proceeding, a perversion of the purpose of the law such as to cause harassment to an innocent party to bring about delay, or where the machinery of justice is engaged in an operation from which no result in furtherance of justice can accrue, and similar perverse results."
In the case of Meraj Khan vs. Gul Muhammad (2000 SCMR 122), it was observed by the Hon'ble Supreme Court that the main consideration to be kept in view would be whether the continuance of the proceedings before the trial forum would be futile exercise, wastage of time and abuse of process of Court or not. If on the basis of facts admitted and patent on record no offence can be made out against the present applicant then it would amount to abuse of process of law to allow the prosecution to continue with the trial against him.
In view of this background, I am of the considered view that no case would be made out against the present applicant at the time of conclusion of trial and there is no probability of the applicant being convicted in the alleged offence. Admittedly, there is litigation, already pending between the parties in as much as the son of the applicant namely Fareeduddin has lodged FIR Bearing No. 58/2002 against the Complainant party in the present case and it is the contention of the learned counsel for the applicant that these proceedings have been initiated, after due consideration and consultation, only to pressurize them for compromise in the said case. Further more it appears that the applicant is aged about 60 years and is not only stated to be a patient of diabetes and high per tension but also an infirm person on account of which is physically unable to take part in any dispute.
Accordingly, I am of the considered view that it is a fit case where proceedings pending before the learned VIIth Addl. Sessions Judge Karachi South in respect of the present applicant be quashed as there is no probability of the applicant being convicted in the alleged offence, hence proceedings pending as above, are nothing but abuse of process of the Court.
Consequently, this Cr. Misc, Application is allowed and the proceedings against the present applicant pending before the learned VIIth Addl. Sessions Judge Karachi South in Sessions Case No. 596/2002 are quashed.
Cr. Misc. A. No. 150/2004 disposed of.
(A.A.)      Application granted.

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