Sunday, 13 March 2016

To Prevent Abuse of Process of Court 561-A, 265-K and 249-A are remedies

PLJ 2015 Sh.C. (AJ&K) 23
versus
Crl. Misc. Petition No. 105 of 2013, decided on 30.1.2014.
----Principle--It is will settled principle of law that inherent jurisdiction of High Court under Section 561-A, Cr.P.C. is neither alternative nor additional in its character and is to be rarely invoked only in interest of justice so as to seek redress of grievance for which no other procedure is available and that provision should not be used to obstruct divert ordinary course of criminal procedure--Section 561-A, Cr.P.C. confers upon High Court inherent powers to make such orders as may be necessary to give effect to any order under Cr.P.C. or to prevent abuse of process of any Court or otherwise to secure ends of justice--These powers are very wide and can be exercised by High Court at any time--In exceptional cases High Court can exercise its powers under Section 561-A,Cr.P.C, without waiting for trial Court to pass orders under Section 249-A or 265-K, Cr.P.C. if facts of case so warrant to prevent abuse of process of any Court or otherwise to secure ends of justices.                                 [P. 25] A
----S. 561-A--Inherent Jurisdiction of High Court--Quashment of FIR--In such like where there are two claimants of Nikah of a woman statement of that woman is of vital importance to decide controversy between parties--Moreover, according to injunctions of Islam, consent of adult sane couple is sufficient for "Nikah"--Petitioner and Proforma-Respondent No. 4 being sui-juris have lawfully married each other and in these circumstances offences as alleged in FIR are not made out and continuance of investigation under circumstances against spouses may amount to unnecessary harassment--It reveals from perusal aforesaid unreported judgment that a case, under Sections 447, 109, APC and 14, EHA was registered and F.I.R was quashed by Sh.C. (AJK) Court, thereupon matter went up en in Hon'ble Supreme Court whereby judgment of Sh.C. (AJK) Court was set-aside and application under Section 561-A, Cr.P.C. was dismissed--Offences and circumstances in aforesaid unreported judgment were totally different from case in hand, because present case has been registered in offences under Sections 10/11,16/19, ZHA--Whereby F.I.R. was quashed--Even otherwise, it has been held by Apex Court that each and every case has its own peculiar facts and circumstances and it should be judged in of its peculiar facts--Therefore, ruling cited by Counsel respondents does not attract in present case--Application was accepted and FIR was quashed. [Pp. 25 & 26] B, C & D
Messrs Azad Tariq and Ch. Muhammad RiazAdvocates for Petitioner.
Ch. Ghulam NabiAdvocate for Respondents.
Date of hearing: 30.1.2014.
Order
This is an application under Section 561-A, Cr.P.C. for quashment of FIR No. 126/2011 registered in offences under Sections 10/11, 16/19, ZHA at Police Station, Kahuta on 29.10.2011 at the complaint of Muhammad Jameel s/o Muhammad Siddique.
It is contented in the application that the above titled case against the petitioner, her husband and others is totally false, frivolous and concocted one; therefore, the impugned F.I.R is liable to be quashed. It is further contended in the application that F.I.R has been registered with the delay of about 13 days, which has not properly been explained by the complainant. It is further mentioned that the petitioner is an adult lady and she with her own freewill has contracted marriage with Proforma-Respondent No. 4, Muhammad Mushtaq Awan. It is also submitted that the petitioner has got recorded her statement before Civil Judge/Judicial Magistrate Islamabad with regard to her Nikah with Muhammad Mushtaq Awan, wherein she stated that nobody abducted her and she solemnized Nikah with Muhammad Mushtaq with her consent. Finally, it is prayed in the application that by accepting application under Section 561-A, Cr.P.C., the FIR No. 116/2011 may kindly be quashed.
I have heard the learned Advocates for the parties and gone through the record.
For having true perception, I would like to reproduce Section 561/A, Cr.P.C., which is as under:
561/A, Cr.P.C. Nothing in this 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."
It is will settled principle of law that the inherent jurisdiction of this Court under Section 561-A, Cr.P.C. is neither alternative nor additional in its character and is to be rarely invoked only in the interest of justice so as to seek redress of grievance for which no other procedure is available and that the provision should not be used to obstruct or divert the ordinary course of criminal procedure. Section 561-A, Cr.P.C. confers upon this Court inherent powers to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice. These powers are very wide and can be exercised by this Court at any time. In exceptional cases this Court can exercise its powers under Section 561-A,Cr.P.C, without waiting for trial Court to pass orders under Section 249-A or 265-K, Cr.P.C. if the facts of the case so warrant to prevent abuse of the process of any Court or otherwise to secure the ends of justices.
In the present case, the petitioner is a sui-juris lady, who got recorded her statement before Civil Judge/Judicial Magistrate Islamabad with regard to her Nikah wherein she stated that nobody abducted her and she has solemnized Nikah with Muhammad Mushtaq Awan according to her consent and free-will. It is also pertinent to note here that in such like cases where there are two claimants of Nikah of a woman the statement of that woman is of vital importance to decide the controversy between the parties. Moreover, according to the injunctions of Islam, the consent of adult sane couple is sufficient for "Nikah". The petitioner and Proforma-Respondent No. 4 being sui-juris have lawfully married each other and in these circumstances the offences as alleged in the FIR are not made out and continuance of investigation under the circumstances against the spouses may amount to unnecessary harassment. My aforesaid view finds support from an unreported judgment of Hon'ble Supreme Court of Azad Jammu & Kashmir titled Syed Azad Hussain Shah V. Syeda Saba Asghar & others (decided on 19.6.2012 in Civil P.L.A. No. 86 of 2012) wherein it was observed as under:
"Moreover, the statement of Mst. Saba Asghar, Respondent No. 1, which, is a most relevant evidence in this Court, have categorically stated that she entered into Nikah with the deceased on her own will and no one has abducted her. In the presence of the said statement, no further evidence is required in this Court. The marriage is a civil contract and every Muslim of sound mind, who has attained puberty, can enter into contract of marriage and it is void only when it is solemnized without his/her consent. According to principle of Muhammadan Law the presumption of valid marriage can be ascertained from the fact of acknowledgement by a man or woman as husband and wife.”
As far as an unreported judgment of Hon'ble Supreme Court of AJ&K, titled Shah Muhammad V. Muhammad Younis & others (Civil Appeal No. 12 of 2011 decided on 30.07.2013) is concerned, it reveals from the perusal of aforesaid unreported judgment that a case, under Sections 447, 109, APC and 14, EHA was registered and the F.I.R was quashed by this Court, thereupon the matter went upon in the Hon'ble Supreme Court whereby the judgment of this Court was set-aside and the application under Section 561-A, Cr.P.C. was dismissed. It will be worthwhile to mention here that the offences and circumstances in the aforesaid unreported judgment were totally different from the case in hand, because the present case has been registered in offences under Sections 10/11,16/19, ZHA, and in the same offences the Hon'ble Supreme Court of Azad Jammu & Kashmir, in an unreported judgment, titled Syed Azad Hussain Shah V. Syeda Saba Asghar & others (Civil P.L.A. No. 86 of 2012 decided on 19.6.2012), has not granted leave to appeal against the order of High Court dated 23.4.2012, whereby F.I.R No. 124 was quashed. Even otherwise, it has been held by the Apex Court that each and every case has its own peculiar facts and circumstances and it should be judged in light of its peculiar facts. Therefore, the ruling cited by the learned Counsel the respondents does not attract in the present case.

The nutshell of above discussion is that I accept this application and quash the F.I.R. No. 126/2011 dated 29.10.2011 registered at Police Station Kahuta on the complaint of Muhammad Jameel s/o Muhammad Siddique, complainant, in offences under Sections 10/11,16/19, ZHA. The application stands disposed of accordingly.

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