ACQUITTAL AT ANY STAGE/QUASHMENT U/S 249-A/265-K/561-A CR.P.C

ACQUITTAL AT ANY STAGE/QUASHMENT

U/S 249-A/265-K/561-A CR.P.C

SYNOPSIS

1: Scope & application 2:Appeals

3:Acquittal due to non-appearance of Pws

4:Acquittal on account of delayed trial.

5:Acquittal/quashment in cases of no or insufficient evidence evidence

6:Quashment of malicious proceedings

7: Quashment of cases of civil nature.

8:Quashment of proceedings - preventive offenses

9:Quashment due to non-compliance of S.195 CrPC.

10: Quashment of zina Cases 11:Misc.

1: SCOPE & APPLICATION

PLD 1965 SC 287 M.S. Khawaja V/S The State

S.561-A CrPC. Word “Abuse of process of Court” and “Ends of Justice”, contained in S.561-A CrPC. Defined

PLD 2004 Peshawar 87. Abdur Razaq & 3 Others V/S The State & 2 Others.

S.145 & 561-A CrPC. Jurisdiction of criminal Court – Petition for quashing of order. Jurisdiction of Criminala court under S.145 CrPC could only be invoked on the ground of likelihood of breach of peace and for such purpose the court intending to take cognizance of the matter must consider objectively the facts and circumstances of the case and to satisfy itself whether likelihood of breach of peace existed or noted. Settlement of dispute relating to propery which was not likely to lead to a breach of peace, was within the exclusive jurisdiction of civil court if there was no imminent danger to sthe public peace. Magistrate should not take cognizance under S.145 CrPC and need not determine the factum of actual physical possession of disputed property. Complainant in case had resorted to criminal cosurt U/S 145 only to put additional pressure on petitioners. Dispute, if any between parties was purely of civil nature. Impugned order was set aside and proceedings pending against petitioners U/S 145 were quashed.

PROCEEDINGS QUASHED

1990 PCrLJ 347. Choudhry Mohammad Ashraf V/S The State (Karachi).

S.249-A CrPC. Magistrate has got powers to acquit accused even if no witnesses are examined. Words “groundless” used in S.249-A is not capable of any precise definition.

1992 PCrLJ 110. Sheroo Khan V/S Kaloo Khan (Supreme Court AJK).

S.249-A. Two conditions for recording acquittal u/s 249-A, I) that in the opinion of the magistrate the charge is groundless ii) that there is no probability of conviction of the accused of the alleged offence.

(2) S.249-A. Magistrate is empowered to act in a criminal case at any stage, irrespective of the stage relating to examination of accused and recording of prosecution evidence.

1992 PCrLJ 2054. Abdul Sattar V/S The State (Karachi).

S.249-A CrPC. Applicability of S.249-A itself provides that it is applicable at any stage of the proceedings and the same can be applied even before framing of the charge.

1992 PCrLJ 1641. Moinul Islam V/S The State (Karachi).

S.249-A. The trial court while invoking the provisions of S.249-A, may acquit the accused at any stage notwithstanding the facts of the case.

1993 PCrLJ 524. Muhammad Haroon V/S The State (Karachi).

S.249-A CrPC. Use of words “at any stage of the case” in S.249-A clearly indicates that such powers can be exercised even before framing of charge and also without complainant being heard at all.

1990 PCrLJ 1042. The State V/S Muhammad Rafi & another (Karachi).

S.185-F Customs Act. Acquittal U/S 265-K can be recorded even before charge is framed or any witness examined.

PLD 1997 SC 275. Muhammad Khalid Mukhtar V/S State through Dy. Dir. FIA, Lahore. (DB)

S.249-A, 265-K, Acquital of accused “at any stage” – Connotation – Expression “at any stage” used in S.249-A and 265-K CrPC indicates that any such stage can either be the very initial stage after taking cognizance or middle stage after recording some proceedings or even a later stage.

PLD 1996 Karachi 253. Aarub Khan V/S Haris M.B. Ahmad & Others.

S.249-A. Application u/s 249-A can be filed at any stage of the proceedings. Neither necessary nor there is any requirement that such application has to be filed after evidence of all the witnesses is recorded. Requirements to be fulfilled are : (1) that hearing is to be given to the prosecutor and the counsel of the accused and (2) reasons are to be recorded in support of the conclusion that the charge is groundless or that there is no probability of the accused being convicted.

1992 PCrLJ 1112. Irza Pharma (Pvt.) Ltd. V/S The State (Karachi)

Drugs Act. Powers of trial court u/s 265-K are co-extansive with the powers of High Court U/S 561-A CrPC and both can be resorted to.

1992 PCrLJ 2161. Haji Muhammad Ashraf V/S S.H.O. & Others (Lahore).

S.249-A. Even in case of submission of challan, the accused would have a remedy to move the trial court u/s 249-A.

1992 PCrLJ 2320. Muhammad Zakir & Others V/S The State (Karachi).

S.561-A, 249-A & 265-K CrPC. Application made to High Court without exhausting the remedy available U/S 249-A or 265-K is not barred, although there should be strong reasons to do so.

NLR 1996 CrLJ 434. Rao Muhammad Jameel Khan V/S The State (Multan).

S.409/420/467/471 PPC. Quashment petition u/s 561-A would not be maintainable when petitioner has not moved trial court u/s 249-A CrPC.

1999 PCrLJ 1154. Gulzar Ahmad Shaikh V/S M.N. Salar & another (Kar.)

S.249-A, 265-K & 561-A CrPC being co-extensive, ordinary remedy has to be sought at lower level in the first place.

2000 PCrLJ 220. The State V/S Muhammad Afzal & another (Lahore).

S. 448/427 PPC. S.249-A CrPC. Determining of a case whether falling u/s 249-A CrPC. Factors to be considered. Court has to satisfy itself that the case under consideration is a fit case for its interference even at preliminary stage. Court has also to see that in the admitted circumstances of the case, if the case is allowed to proceed it would be a mockery of trial. Court is to interfere in the interest of justice and to stop the abuse of process of law.

(2):S.249-A CrPC. Acquittal of accused without any application under S.249-A. Validity. Where no such application was filed before trial court, order of acquittal was not sustainable in the eyes of law.

NLR 1998 CrLJ 47. Sajid Iqbal V/S Bashir Ahmed Bhatti V/S Senior Civil Judge (Lahore).

Art.199 Constitution. Writ jurisdiction would not be exercised for quashment of criminal case when it has been invoked without availing of remedy U/S 249-A CrPC. Contention for petitioner that there was no need to file application U/S 249-A as there was no liklihood of conviction rejected and writ petition dismissed

PLD 1992 Karachi 167.

S.561-A CrPC. Power of interference U/S 561-A is to be exercised only for the purpose of correcting injustice and not merely irregularity or illegality.

NLR 1993 CrLJ 445. Muhammad Anwar V/S The State (Karachi).

S.561-A, 265-K. Power to discharge accused should not be exercised when case is at concluding stage and requires deeper appreciation of evidence.

1990 PCrLJ 638. Jehan Shah V/S Haji Qalandar Khan (Karachi).

S.448/465/471/34 PPC. Application U/S 249-A dismissed by trial court on the ground that trial was at the verg of final order. Order was found to be perfunctionary, slipshod and laconic.

1995 SCMR 1679. Mst. Sarwar Jan V/S Ayub & 1

S.302 Q&D. S.561-A CrPC. bestows inherent powers upon High Court to check abuse of the process of a court which is extensive in its application and S.439 CrPC does not circumscribe its such jurisdiction. Words “Nothing in the code” have been intentionally used by the law-makers to unbridle the scope of S.561-A CrPC.

1995 PCrLJ 1224. Mian Abbas Sharif + 2 others V/S Federation of Pakistan (Lahore DB).

Art.199 Constitution S.561-A CrPC. Grounds on which FIR can be quashed (I) that the registration of the FIR is malafide, in fact or in law (ii) that it is a case of no evidence (iii) that the matter is of civil nature, while the criminal proceedings have been adopted with a view to harass the accused for ulterior motives (iv) that there are some serious jurisdictional defects which bars the registration of the case and restrain the court to take cognizance and (v) that undue delay occurred in the matter of final adjudication causing hardship to the accused, especially when he, himself is not responsible for the delay of the proceedings. (2) High court cannot sit as investigator and stop the investigation of the case, especially when the prosecution is already in possession of prima facie strong evidence against the accused. Hampering the process of investigation has always been taken against the ends of justice.

1995 PCrLJ 2047. Bostan V/S The State (Lahore).

S.561-A CrPC. Inherent powers under this section cannot be exercised by a High Court when the matter is not pending before any court and the words “or otherwise to secure the ends of justice” in S.561-A are relatable to the exercise of jurisdiction when the matter is pending before the court and not at the stage of investigation by the police.

NLR 1995 CrLJ 816. Muhammad Illyas V/S S.H.O. (Lahore).

S.H.O. is necessary party to writ petition seeking quashment of FIR. Complainant who lodged FIR is not necessary party. Order quashing FIR on writ petition which did not implead complainant upheld as unexceptionable.

KLR 1995 Cr.Cases. Raja Khalid Hussain Banwa V/S The State (Quetta DB).

S.420/468/471/109/409 PPC. S.561-A crPC. While deciding an application u/s 561-A minute scrutiny of evidence is not required. The enquiry should be confined only to the extent where a prima facie case is made out against the accused persons on the basis of facts disclosed in FIR, Challan, statements of prosecution witnesses or the charge is groundless.

PLD 1998 Lahore 239. Manzoor Hussain V/S The State.

S.420/468/471/218/34 PPC. S.5(2) Prev.of Corruption Act. S.403, 369, 439 CrPC. Accused already having been acquitted U/S 249-A CrPC and his acquittal having attained finality, issuance of process for his retrial by the same Court had offended against his fundamental right of immunity from double prosecution or punishment and was also hit by S.369 CrPC and was unwarranted in law. Observation of High Court that the Special Judge who had acquitted the accused was disqualified for want of qualification, having been made in another case amounted to an obiter dicta and was of no consequence as far as acquittal of accused. PETITION DISMISSED

1999 PCrLJ 81. Sher Alam & another V/S The State (SC AJK).

S.447/427/147/148/149 PPC./ Application moved by accused U/S 249-A for their acquittal had been rejected by trial court. Five years, thereafter, accused moved High Court U/S 561-A CrPC for quashment of the case which was not in continuation of the application U/S 249-A and the same was refused. Order passed by High Court, in circumstances, did not call for any interference. Direction given by High Court to trial court to complete the trial as early as possible had met the ends of justice.

2000 SCMR 122. Miraj Khan V/S Gul Ahmed & 3 others

S.406/419/420 PPC. S.249-A/265-K 561-A CrPC. High court in exceptional cases can exercise jurisdiction u/s 561-A CrPC without waiting for trial court to pass orders u/s 249-A or 265-K CrPC, if the facts of the case so warrant. Main consideration to be kept in view would be, whether the continuance of the proceedings before the trial form 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, then it would amount to abuse of process of law to allow the prosecution to continue with the trial.

PLD 2000 Peshawar 48. Khanzada Iftikhar Ahmed Khan V/S The State & another.

S.353/382/387/448/506 PPC. Inherent jurisdiction of High Court under S.561-A CrPC could be invoked for prevention of abuse of process of court or to secure ends of justice. Process of court had notyetcommenced as challan of the case against accused had not been put in court. No proceedings being pending in court, question of abuse of process of court would not arise. PETITION DISMISSED.

PLD 2000 Lahore 421. Muhammad Yaqoob V/S Senior Supdt. of Police & 2 Others.

S.408 PPC. Quashing of FIR. Principle. Quashing of FIR in its inception only requires the examination of its contents. If a case is made out, the trial should ordinarily be allowed o proceed, but on the other hand even if contents of the FIR are admitted and conviction is not likely to ensue then the proceedings are termed as abuse of process of law and courts would step into stem such abuse.

2001 MLD 334.Khalil Ahmed V/S Muhammad Saeed & another (Karachi).

S.448/506 PPC. S.14 OAP(EHO). S.249-A & 417 CrPC. Appeal against acquital. Accused who remained absconded was acquitted by Judicial Magistrate on his application U/S 249-A on the ground that challan had been submitted after delay of more than seventeen days of the registration of FIR. Accused was acquitted without framing charges. Validity. Application by accused U/S 249-A CrPC prior to framing of charges was not maintainable. ACQUITTAL SET-ASIDE.

NLR 2001 CrLJ 590. Mst. Shireen Taja V/S The State etc. (Peshawar)

S.249 CrPC. Release of accused on bail by trial court U/S 249 without pronouncing judgment with undertaking that accused would attend the court and face trial as and when required. In such case, prosecution or complainant can always resort to trial court for revival of trial which can commence from the stage it was discontinued.

2003 PCrLJ 12 Gulam Haider @ Gaami V/S The State (Lahore )

Sc. 249-A, 265-K,345, 439 & 517 ----- Penal Code (XLV of 1860 ), S.302/34 --- Acquittal of accused on the basis of such compromise ---Nature, scope, status and effect of such acquittal --- Return of case property --- Accused who was acquitted on the basis of compromise filed application for return of case property/licensed weapons which were taken into possession by police during investigation---Said application was dismissed firstly on the ground that the weapons were used in commission of crime and secondly that acquittal of accused being based on compromise and not on merit ; accused was not entitled to claim restoration of weapons. No. Evidence was available on record that weapons recovered by police from the accused were actually used in commission of crime. Acquittal of accused was acquittal whether it was on basis of declaration by a Court on conclusion of trial that some one was not guilty of charges or at any stages under S.249-A or S.265-K, Cr.P.C.or on basis of compromise under S.345, Cr.P.C. No. Distinction thus could be drawn between an acquittal by way of benefit of doubt, acquittal on basis of compromise or under S.249-A or S.265-K, Cr.P.C.--- Whenever a compromise was arrived at with permission of the Court, it had effect of acquittal of accused ---accused acquitted by Trial Court would be entitled to get case property restored ---- Case property was ordered to be delivered to acquitted accused.

2003 PCrLJ 143Muhammad Anwar V/S Ali Abbas, Civil Judge Tehsil Mankera etc.(Lahore)

Ss. 561-A,173 & 154-A Quashing of proceedings Petitioner had been declared innocent by police in its report under S.173 , Cr. P.C. Trial Court after recording statement of the complainant had directed the petitioner to face trial revision petition filed by the petitioner had been dismissed by the session judge---Validity----Grounds taken by the petitioner for quashing of proceedings in the Crimnal trial were not sufficient to exercise powers under S.561-A, Cr.P.C. section 154, Cr.P.C. nowhere mentioned that the F.I.R. could be lodged by the aggrieved and competent person only, similarly the findings of the police about the petitioner were not binding upon the Court and was not relevant for the decision in the criminal case contention that the case had been registered with mala fide intention could not be considered for quashing of the proceeding in a slipshod manner without affording an opportunity to the prosecution to prove its case against the petitioner….. Trial Court could come to a definite conclusion only after recording the evidence of the prosecution where the petitioner would have an opportunity to cross-examine the prosecution witnesses and prove his innocence by producing his evidence in rebuttal of the charges High Court accordingly dismissed the petition in limine.(Lahore)

2003 PCrLJ 546, Saeed Ahmed V/S The State (Karachi).

S.561 –A Constitution of Pakistan (1973), Art.203-DD Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4 Quashing of proceeding Jurisdiction Federal Shariat Court has not been conferred the jurisdiction to quash the proceeding under S.561-A, Cr.P.C. However, Jurisdiction of High Court to entertain a petition under said section has not been excluded.

NLR 2003 CrLJ 733. State V/S Kenneth Marshal & Others (SC.FB).

S.561-A. Partial quashment of criminal case is permissible U/S 561-A.

PLD 2003 Karachi 340.Hazoor Baksh V/S Riaz Ali Abbasi & another

S.249-A & 417(2) CrPC. S.161/343/337-A. PPC. S.5(2) Prevention of Corruption Act. Appeal against acquittal. Trial court despite having recorded a finding about a prima facie case having been made out against the accused by the complainant in his direct complaint, had acquitted the accused U/S 249-A CrPC without recording any evidence. Trial court under the special circumstances of the case was under a heavy duty to have afforded full opportunity to the complainant to prove his allegations and then to record a finding with proper reasons if the same stood proved or not and to draw a reasonable presumption against the accused by taking into consideration all necessary evidence whether the accused SDM had acted in collusion with the SHO of the police station while issuing the bailable warrant of arrest against the complainant. Burden lay on the accused SDM to prove that he had all along discharged his official duties bona fide without any collusion with any body else in issuing the said warrants. Trial court had not discussed even a single allegation made by the complainant or even a single document relied upon by him in the impugned order and such a slipshod order had also adversely affected its efficiency. Impugned order of acquittal was set aside in circumstances and the case was remanded to trial court for fresh decision after affording full opportunities to both sides to produce their respective evidence. CASE REMANDED.

NLR 2004 CrLJ 387. Muhammad Arshad etc. V/S The State (Lahore)

S.392/109 PPC. In order to quash an FIR under Art.199 of the constitution and proceedings initiated on its basis, High Court has to consider whether the FIR on the face of it is frivolous and whether the allegation as contained in the writ petition do not constitute an offence even if the same are assumed to be correct. High Court has also to see whether allowing the proceedings to continue on the basis of such FIR would be an abuse of process of law. In order to succeed for quashment of FIR, writ petitioner has to show that he cannot be convicted even if the allegation as contained in the FIR are accepted as correct. PETITION DISMISSED

PLD 2004 Lahore 65. Rehmat Ali & Others V/S Station House Officer

Art.199 - Quashing of FIR. High Court in exceptional cases can exercise jurisdiction without waiting for trial court to pass orders U/S 249-A or 265-K CrPC if the facts of the case so warrant. Main consideration to be kept in view would be whether the continuance of the proceedings before the trial forum would be a futile exercise, wastage of time and abuse of the process of court or not, and if on the basis of facts admitted and patent on record, no offence can be made out, the it would amount to abuse of process of law to allow the prosecution to continue with the trial. FIR QUASHED

2006 PCrLJ 518. Ch. Muhammad Ashraf V/S The State (Karach)

S.561-A CrPC. inherent powers of High Court. Administrative orders subservient to such power. Administrative orders, f found arbitrary, can be quashed by High Court in exercise of its inherent jurisdiction U/S 561-A CrPC.

2005 MLD 1816.SAQUEhan V/S SHO (Lahore)

S.353/186/148/149 PPC. Grounds for quashing of criminal case. Some grounds on which a criminal case could be quashed by High Court in exercise of its constitutional jurisdiction were, when case was of no evidence, when very registration of the case was proved to be mala fide on the face of record, when case was of purely civil nature, criminal proceedings were not warranted in law, especially to harass accused, when there was serious jurisdictional defect and when there was unexplained delay in the disposal of case causing deplorable mental, physical and financial torture to person proceeded against. First two conditions being fully applicable to the present, FIR registered against petitioner was liable to be quashed and its continuation would be abuse of process of law. FIR QUASHED

2005 SCMR 1544. The State through Advocate General V/S Raja Abdul Rehman (SC.FB)

S.249-A/265-K/561-A CrPC. Provisions not to be used for deciding the fate of a criminal case. Usually a criminal case should be allowed to be disposed of on merits after recording of prosecution evidence, statement of accused U/S 342 CrPC and U/S 340(2) CrPC, if so desired and hearing the arguments of both the parties. Provisions of S.249-A, 265-K and 561-A should not normally be pressed into action for deciding the fate of a criminal case. STATE APPEAL ALLOWED

2006 MLD 1884. Anees Ahmad V/S The State (Lahore)

S.561-A/265-K/435/439 CrPC. S.17/18/22 Emigration Ordinance, S.3 & 4 Prevention & Control of Human Trafficking Ordinance. Accused had called in question order passed by Special Judge, whereby application for his acquittal filed U/S 265-K was dismissed. Two prosecution witnesses in their statement U/S 161 had fully implicated the accused but they took a totally divergent stand in their statements recorded by a Special Judicial Magistrate at a belated stage. Since the trial had already commenced, making any observations on the pleas advanced by counsel for accused would not be appropriate as said pleas related to merits of the case and it could not be said that no case was made out against the accused. Credibility of prosecution's star witnesses against accused, would be determined only by the trial court. Necessity of getting their statements recorded by a Special Judicial Magistrate would also be ascertained during the course of trial. Any interference at present stage by High Court in exercise of its powers U/S 561-A would tantamount to pre-empting the functions of the trial court. Prosecution at that stage in case of such a serious nature, could not be deprived of its right to prove its case against petitioner. APPLICATION DISMISSED.

2006 SCMR 276. Col. Shah Sadiq V/S Muhammad Ashiq & Others (SC DB).

S.265-K/249-A551/561-A/190/63 CrPC. R.24.7 Police Rules 1934, S.420/468/471 PPC. Quashing of FIR. Required circumstance. Constitutional jurisdiction of High Court. Scope. If, prima facie, an offence had been committed, ordinary course of trial before the court should not be allowed to be deflected by resorting to constitutional jurisdiction of High Court. High Court had no jurisdiction to quash FIR by appreciation of documents produced by the parties without providing chance to cross-examine or confronting the documents in question. High Court would err in law to short circuit the normal procedure of law as provided under CrPC. Party seeking the quashing of FIR had alternative remedy to raise objection at the time of framing the charge against them by the trial court or at the time of final disposal of the trial after recording the evidence. Said party had more than one alternative remedies before the trial court U/S 265-K & 249-A, or to approach the concerned Magistrate for cancellation of the case under the provisions of CrPC. IMPUGNED JUDGMENT OF HIGH COURT SET-ASIDE.

2006 SCMR 1957. Muhammad Saleem Bhatti V/S Syed Safdar Ali Rizvi & Others (SC.FB)

S.561-A/249-A/265-K/439 CrPC Art.19 & 185(3) of Constitution Quashment of FIR. Factual controversy. Non-availing of alternate remedy U/S 249-A, 265-K and 439 CrPC. Effect. Petitioner filed constitutional petition, before the High Court, praying therein for quashment of four FIRs registered against him on ground that instead of making resort to Civil Court, complainant/respondent had initiated criminal proceedings against petitioner by way of lodging FIRs. High Court quashed all four FIRs, ;holding that petitioner did not commit any cognizable offence in the said FIRs which, being an abuse of process of law, could not be allowed to secure ends of justice. Validity. High Court was to exercise jurisdiction under Art.199 of the constitution within certain settled parameters. High Court was not supposed to enter into a factual controversy unless it was established that certain facts were not disputed between the parties......... As FIR had been quashed at preliminary stage it was bound to cause prejudice and injustice to the case of complainant. Judgment of High Court was set aside and case was sent back to Investigating Agency for conducting investigation and submitting challan in accordance with law. Complainant/respondent had challenged finding of High Court only to the extent of one FIR, therefore, quashment of other FIRs was not to remain unaffected by the order passed by the Supreme Court. PETITION ALLOWED.

2007 PCrLJ 864. Muhammad Bashir V/S Superintendent of Police (Lahore)

S.420/468/471 PPC. Quashing of FIR, refusal of – Investigation of the case was still pending. High Court in a bail application filed by an accused had directed the IO to send certain documents for the opinion of Handwriting Expert. No interference at such stage of investigation in its process was called for. Practice of quashing of the FIRs when the case involved controversial questions of law and fact was not approved. Contention raised by the petitioners needed factual inquiry which could not be resorted to by High Court while seized of a constitutional petition. Section 195(1)(c ) did not place any embargo against registration of case. Taking of cognizance and recording of FIR being two separate concepts were not to be intermingled. PETITION DISMISSED.

NLR 2007 SD 333.

S.249-A CrPC. Order of acquittal passed by Magistrate at a stage when entire prosecution evidence in the case had been completed and the case was fixed for statement of accused when there were other accused also in the case against whom the trial was continuing would not be warranted under S.249-A. High Court would be wrong in upholding such acquittal order in dismissing State appeal filed to challenge it. Supreme Court allowing State appeal, setting aside acquittal order, remanding case and directing trial of accused acquitted under S.249-A. (2) S.249-A. Filing of repeated application under S.249-A after dismissal of first application under S.249-A is barred as there is no provision under S.249-A for filing of repeated applications once an application under S.249-A is dismissed on merits. Order of acquittal passed by Magistrate on third application U/S 249-A after dismissal of earlier two applications would be void ab initio. (3) S.249-A CrPC. Approach of Magistrate on application U/S 249-A CrPC filed by one of multiple number of accused would be different from that when application is filed under S.249-A involving only one accused. In such case involving multiple number of accused, it would not be permissible for Magistrate to make or express advervse remarks and make observations relating to antecedents, credibility and reliability of prosecution witnesses, the inherent/intrinsic weaknesses and short-comings in prosecution case and truth or veracity of prosecution evidence, thus destroying or shattering prosecution case against other co-accused. Any direction or instruction by Supreme Court to concerned trial magistrate would not be sufficient to ward off the impact and influence of adverse observations, inferences and remarks made by Magistrate in his acquittal order under S.249-A in favour of one of multiple number of accused. For an independent and impartial scrutiny, appraisement and analysis of evidence and decision of prosecution case, it would be necessary that acquittal order in favour of one accused containing adverse observations about prosecution case against other co-accused should be set-aside. (4) S.249-A. There can be no dispute that an application U/S 249-A can be filed, taken up for hearing and decided at any time or stage of the proceedings. The words "at any stage" in S.249-A denote that application U/S 249-A can be filed even before prosecution evidence had been recorded or while exercise of recording evidence is going on or when the exercise is over. (5) S.249-A, 265-K. Acquittal order passed under S.249-A and 265-K would not have the same sanctity as order of trial passed on merits after full-fledged trial of the case. Consequently, the principles which are to be observed and applied in setting aside concurrent findings of acquittal or the principle relating to presumption of double innocence when an accused is acquitted after full-fledged trial would not be applicable to trial earned by accused under S.249-A or 265-K CrPC.

NLR 2008 SD 161. Muhammad Bashir @ Bakola etc. V/S Superintendent of Police (Lahore)

Art.199 of Constitution. Practice of quashing FIR by High Court in exercise of its jurisdiction under Art.199 when case involves controversial question of law and fact has been deprecated by Supreme Court. Factual inquiry cannot be resorted to by High Court when High Court is seized with petition under Art.199 seeking quashment of FIR. FIR NOT QUASHED.

NLR 2008 SD 30. Rukhsar Ahmad V/S The State (Shariat Court AJK)

S.561-A CrPC. Normally every case under S.561-A should be allowed to proceed according to law and resort to provisions of S.561-A should not be lightly made as the same would tend to circumvent the process of law. Criterion for exercise of powers under S.561-A is that injustice complained of must be clear, grave in nature and tangible and there is no other remedy available except resort to S.561-A. Application filed by accused under S.561-A would merit dismissal when it has been filed by accused to prolong and circumvent the trial of case against him. APPLICATION DISMISSED.

2008 PCrLJ 11. Naik Muhammad & 5 Others V/S Naseebullah & another (Quetta)

S.200 & 249-A CrPC. Power of Magistrate to acquit accused---Scope---Application for acquittal under S.249-A could be moved at any stage of proceedings, but such application had to be dealt with strictly on merits in the light of relevant provisions of law. In the present case, during enquiry under S.200 CrPC some evidence had been produced which prima facie made out a case. Case, in circumstances did not warrant filing of an application under S.249-A being at a premature stage. PETITION DISMISSED.

2008 YLR 279. Shahid Abbas V/S The State & another (Lahore)

S.302/324/337-A(ii)/337-F(ii)/337-F(v)/337-L(2)/382/148/149 PPC. Article 155-C & 155-D Police Order 2002. S.204/265-K/439 CrPC. Accused in response to the summoning order passed by Sessions Court in a private complaint appeared in the court and moved an application under section 265-K CrPC seeking his acquittal from the charge. Said application had been dismissed by Sessions Court on the ground that after appearance of accused no progress was made in the case, therefore passing any order on the application under section 265-K would amount to recalling its earlier order whereby the accused had been summoned which was not permissible in law----Validity----Held, summoning order passed by Sessions Court under section 204 CrPC was not in the nature of a judgment and could be reviewed, recalled or revisited at any stage of the proceedings. Impugned order was consequently set aside with the direction to trial court to decide the application of accused under section 265-K on merits in accordance with law. REVISION ACCEPTED.

2008 YLR 332. Rukhsar Ahmad & 2 Others V/S The State (Shariat Court AJK)

S.561-A CrPC. Inherent powers are meant for doing substantial justice in a case of unforeseen eventualities for which no provision is available in Criminal Procedure Code and those powers are to be used with care and caution and not to interrupt, impede or stifle any proceedings or any other course which is regulated and controlled by other provisions of the Code. Main aim and object of the said provisions of the law is to save the people from the agony of the abuse of the process of the court and from the fake mock trials. Before exercising these powers court should come to a conclusion that allowing the impugned trial and proceedings to continue would defeat the ends of justice or either would operate or perpetuate on injustice or would be an abuse of the process of law and perversion of the administration of justice. Criterion for the exercise of the powers is that the injustice complained of must be clear, grave in nature and tangible and there is no other remedy available. PETITIONER DISMISSED.

2008 SCMR 383.Ghulam Farooq Tarar V/S Rizwan Ahmad & Others

S.66-A Copyright Ordinance 1962. S.420/468/482/471 PPC. S.249-A CrPC. Accused acquitted under S.249-A CrPC---Validity---Accused in his application moved under S.249-A CrPC had not specifically denied the publication by him of the two books in question. Court undoubtedly could acquit the accused under S.249-A CrPC if in its opinion either the charge was groundless or there was no probability of the accused being convicted of any offence, but if the allegations levelled in the complaint supported by the preliminary evidence were admitted to be true, probability of conviction of accused at such stage could not be ignored. Trial court had acted in haste in passing the order of acquittal which was not sustainable and the same was consequently set aside by converting petition for leave to appeal into an appeal, with the direction to trial court to proceed with the complaint in accordance with law. IMPUGNED ORDER SET-ASIDE.

2008 MLD 712. Bakhat Zada V/S SHO Police Station Banni, Rawalpindi (Lahore)

S.561-A CrPC. Art.14 of 1973 Constitution. Quashing of FIR. Petitioner/accused was not available for trial in the main case and for disposal of petition for quashing of FIR. Petition was not maintainable and competent because petitioner was arrested by the local police on the charge of staying in Pakistan without valid documents; that two conflicting versions/claims had been laid before the High Court, one by the police and other by ptitioner/accused and High Court was not obliged to examine, analyse and scrutinize said counter-claims with the yardstick of the trial court. Petitioner challenged the allegation set up in the FIR in the petition with the plea that he was not a foreigner but was resident of Bajaur Agency. Petitioner produced certain documents before High Court in support of his plea, genuineness of which had been challenged by the law officer. High Court while deciding petition under Art.199 of Constitution read with S.561-A CrPC was not supposed and expected to assume the role of investigator. Petitioner should have put forward his defence version and the documents before the investigator instead of the High Court. Provisions of Art.199 of the Constitution were not meant to hamper investigation of criminal cases. High court though was possessed with inherent powers under S.561-A but said provisions were not meant for the purpose of thwarting the criminal proceedings pending before the trial court or the investigation pending before the investigating agency. PETITION DISMISSED.

2008 PCrLJ 941. Hamid Nawaz V/S Station House Officer (Lahore)

Art.199 of 1973 Constitution. S.379, 440 & 337-H(ii)/34 PPC. Quashing of FIR. Petitioner/accused and his co-accused stood specifically nominated in the FIR wherein definite allegations had been leveled against them. If such allegations were accepted as correct at their face value, then the same prima facie disclosed commission of some cognizable offences. Local police had no option, in circumstance, but to register impugned FIR. Allegations leveled against accused and his co-accused in the impugned FIR were purely factual in nature and the impugned FIR were purely in nature and rebuttal by accused of such allegations also necessarily required holding enquiry by High Court in the present summary proceedings under Art.199 of the Constitution. Impugned FIR was stillat its investigation stage and it was a statutory duty of thepolice to investigate a crime reported to it and High Court would not take steps to stifle the said duty of the police at such a premature stage. PETITION DISMISSED.

2008 PCrLJ 950. Umar Farooq V/S Muhammad Ilyas & another (Shariat Court AJK)

S.561-A CrPC. Inherent power of the High Court---Scope---Even possessing wide and indefinable powers to do real justice and prevent abuse of process of the court, it could not override an express provision of law; which would mean that the powers available to High Court U/S 561-A CrPC would not be exercised in respect of the matter, which were covered directly by any specific provisions of criminal procedure; in that manner, the court could not abstract or divert ordinary course of criminal procedure. PETITION DISMISSED.

2008 PCrLJ 941. Hamid Nawaz V/S Station House Officer (Lahore)

Art.199 of 1973 Constitution. S.379, 440 & 337-H(ii)/34 PPC. Quashing of FIR. Petitioner/accused and his co-accused stood specifically nominated in the FIR wherein definite allegations had been leveled against them. If such allegations were accepted as correct at their face value, then the same prima facie disclosed commission of some cognizable offences. Local police had no option, in circumstance, but to register impugned FIR. Allegations leveled against accused and his co-accused in the impugned FIR were purely factual in nature and the impugned FIR were purely in nature and rebuttal by accused of such allegations also necessarily required holding enquiry by High Court in the present summary proceedings under Art.199 of the Constitution. Impugned FIR was stillat its investigation stage and it was a statutory duty of thepolice to investigate a crime reported to it and High Court would not take steps to stifle the said duty of the police at such a premature stage. PETITION DISMISSED.

2008 PCrLJ 950. Umar Farooq V/S Muhammad Ilyas & another (Shariat Court AJK)

S.561-A CrPC. Inherent power of the High Court---Scope---Even possessing wide and indefinable powers to do real justice and prevent abuse of process of the court, it could not override an express provision of law; which would mean that the powers available to High Court U/S 561-A CrPC would not be exercised in respect of the matter, which were covered directly by any specific provisions of criminal procedure; in that manner, the court could not abstract or divert ordinary course of criminal procedure. PETITION DISMISSED.

PLD 2008 Karachi 310.. Asif Ali Zardari V/S The State

S.265-K CrPC. S.302/324/148/146/120-A & 120-B PPC. Court has ample powers to acquit accused even if the witnesses are not examined. Provisions of S.265-K CrPC are meant to prevent the rigours of a prolonged trial when it is apparent from the record that there is no probability of the accused being convicted of any offence. Burden of proof is on the prosecution and in the present case, evidence available with it, if at all accepted (as it is), the same would not be able to establish the charge against accused in the light of required standard of law, hence recording of further evidence would waste public time and serve no public interest, rather on the contrary, such futile exercise would prove to be further scandalous to the accused person, who equally deserved justice and fair treatment in all respects. (2) Inherent powers of High Court U/S 561-A CrPC---Object and scope--- Object of S.561-A whereby inherent powers are conferred upon High Court, is to do the real and substantial justice and to p0revent the abuse of the process of Court. Powers of Ghigh Court are very wide to secure ends of justice. Statements of thirteen witnesses, in the present case, showed that their evidnce was hearsay and as such trial court misread and mis-appreciated the evidence that recorded facts showed that there was absolutely no direct evidence against the accused and there was nothing incriminating against him;l that prosecution would not achieve its object and examination of remaining witnesses and in no way the case was likely to end in conviction so far the case of present accused was concerned; that it was a matter of record that as much as three FIRs were registered with interval but the name of accused did not transpire in any of the FIRs and as such he was not nominated by either of the complainant and that even if, remaining witnesses were examined, the case of the prosecution would not be improved so much as to result in conviction of accused. Held; it was a fit case where proceedings pending before the District and Sessions Judge in respect of the accused be quashed as there was no possibility of the applicant/accused being convicted in the alleged offence, as proceedings, pending were nothing but abuse of process of the court. ACQUITTAL

2008 PCrLJ 1455. Messrs Star Agro Allied Machinery Industries (Pvt.) Ltd. V/S Chairman Commercial Court Punjab (Lahore)

S.249-A CrPC. S.5A(7), (8) & 5(B) Imports & Exports (Control) Act 1950. Pleas of the appellant were that as the Prosecutor was yet to be appointed for prosecuting the case before the Commercial Court and secondly, as there was no application filed by the respondent for acquittal under S.249-A., therefore, the order of acquittal could not have been passed----Validity---- Where S.5A(7) of the Imports and Exports (Control) Act 1950 and S.249-A CrPC being the laws relevant to the proceedings before the Commercial Court, provided that without the presence/appointment of the Prosecutor, case could not be proceeded by the Commercial Court and where there was also an allegation that an application under S.249-A was not filed, the matter could only be resolved by recording evidence of the parties and that too after granting an opportunity to advance the case of the appellant. Commercial Court had passed the order of acquittal under S.249-A in haste without adverting to the provisions of the law. APPEAL ALLOWED.

PLD 2009 SC 102. Ajmeel Khan V/S Abdur Rahim & Others

S.154 & 156 CrPC. To quash police investigation on the ground that case is false would be acting on treacherous grounds and tantamount to an uncalled for interference by court with the duties of police. Conduct and manner of investigation normally is not to be scrutinized under constitutional jurisdiction which may amount to interference in police investigation as the same cannot be substituted by court.

2009 MLD 156.Matahir Shah V/S The State & 4 Others (Karachi)

S.324/506-B PPC. S.561-A/173 CrPC. Matter as mentioned in the application was investigated by the Investigating Officer who submitted his report under S.173 CrPC to the Judicial Magistrate who declined to take cognizance vide impugned order, which order was upheld by the trial court and applicant/complainant had filed application U/S 561-A CrPC against impugned order. Prima facie it appeared that entire material collected by the Investigating Officer, was considered by the Magistrate and then passed the order on merits and discussed all merits and demerits of the case----Validity---Powers of High Court under S.561-A CrPC were to be used not in each and every case, but rarely in appropriate cases and there must be a material on the basis of which orders passed by the courts below be set aside. When two courts below came to the conclusion that no fruitful result would be achieved, if matter proceeded, no interference was required. Magistrate was not to fill the lacuna left by the Investigating officer and to act as Investigating Officer of the case or to be a party but he had only to scrutnize the matter on available material and it would depend upon him to agree or disagree with police report. Counsel for applicant had failed to show any illegality which amount to abuse of the process of law. Orders passed by the two courts below were proper, legal and in accordance with law and no illegality or material irregularity was committed by the courts below. APPLICATION DISMISSED

2009 PCrLJ 989. Hyder Ali Bhimji V/S The State (Karachi)

S.561-A & 249-A CrPC. S.471/420/465/467/468/477-A/109/34 PPC. Test for interference in criminal proceedings was that if the proceedings were allowed to continue those should result in grave miscarriage of justice; and there should exist no other provisions of law by which the aggrieved party could seek relief. Other test was that the allegation in the FIR and the statement of witnesses recorded by the Police, if taken at their face value and accepted in their entirety, no offence was made out and no probability of the conviction of accused existed. Applicants had failed to demonstrate the extraordinary circumstances for directly approaching High Court for quashing of proceedings.QUASHMENT APPLICATION DISMISSED.