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Criminal Miscellaneous No. 72/Q of 1979, decided on 7th May, 1979.

----S. 561‑A‑Quashment of criminal proceedings at preliminary stage when evidence yet to come‑High Court to take allegations against accused at their face value and accept in such case same in their entirety and then to see if an offence constituted warranting ,47 prosecution‑High Court not to embark upon an enquiry to ascertain innocence or otherwise of accused nor case can be quashed merely because accused denies allegations and asserts having a good defence, when defence yet to come.

---‑ S. 561‑A‑Quashment of criminal proceedings‑Alternate remedy available‑Resort to inherent jurisdiction of High Court under S. 561‑A, Cr. P. C. held not to be had.

Ghulam Muhammad v. Muzammal Khan etc. P L D 1967 S C 317 ; Sher Khan etc. v. The State 1968 S C M R 62 and Khushi Muhammad etc. v State 1979 S C M F. 94 ref.

‑‑ Ss. 561‑A & 195 read with Penal Code (XLV of 1860), S. 186 Quashment of criminal proceedings‑Contention that cognizance of case under S. 186, P. P. C. could not be taken for non‑compliance of provision of S. 195, Cr. P. C.‑Question of effect of such non‑compliance, held, to come up first before trial Court.‑‑‑ [Cognizance].

Rashid Murtaza Qureshi and R. A. Awan for Petitioner No. 1.

Khurshid Alam Ramay for the State.

Date of hearing: 25th April 1979.

By this application filed under section 561‑A, Cr. P. C., three criminal cases are sought to be quashed which arise from F. I. Rs. 91, 92 and 93 respectively, all of 27th May, 1977 lodged at Police Station Yakki Gate, Lahore.

2. F. 1. R. No. 91 was lodged by Muhammad Din, an employee of the State Guest House, Lahore, at 3‑30 p. m. on 27th May, 1977, in which he alleged that his daughter had been married to one Faqir Muhammad and had been living with him for the last 18 years inside Sheranwala Gate, that while she had been away to Gojra, her husband had been kidnapped and when on return from Gojra, she went to her house, she found the same forcibly. occupied by Mst. Allah Rakhi, her husband and her son Sabir who had also taken possession of the articles in the house. The case was accordingly registered under section 380/448, P. P. C:

3. The allegation in F. 1. R. No. 92, lodged by Fazal Mahmud, A. S. I. is that he had gone to the spot for investigation of the case of Muhammad Din but had been forcibly taken inside the house by Sadiq, Sabir and a woman, where he was locked in from outside, that a Head Constable who was accompanying him, was made helpless by the women of the house and that he (Fazal Mahmud) was rescued by a police party which came from the Police Station. Fazal Mahmud, A. S. I., accord ingly lodged the report at 4‑05 p. m: under sections 332/186/342/353, P. P. C. In the report, he also alleged of having received injuries on his person and of the tearing away of his uniform.

4. The third F. I., R. was lodged at‑ 5‑45 p. m. the same day by Iftikhar Ahmad S. I./S. H. O. alleging that while he was bringing Muhammad Sadiq, and Muhammad Sabir under arrest in connection with the case arising from F. 1. R. No. 92, Muhammad Sadiq shouting that he would die with the blame attaching to the police started striking his head with the hand cuffs, in the result' of which he started bleeding. It was alleged that he thus attempted to com mit suicide and as such was liable under section 309, P. P.. C.

5. In the background are two writ petitions, one being W: P. No. 1201 of 1977 filed by Mst. Allah Rakhi petitioner who is mother of the other four petitioners, wherein she had alleged that the Yakki Gate, Vp1jce Station, was not registering her case in site of written complainant having been sent there per registered post. That petition was disposed of by this Court on 15th July 1977 with the direction to the S. H. O. to register her case on the basis of her written report. It transpires that the case was entered by the police in their Diary but was not challaned and as such a direct complaint was filed before the Magistrate. The other is W. P. No. 1324 of 1977 brought by Muhammad Din com plainant in F. I. R. No. 91, challenging that the cancellation of his said F. I. R. was without lawful authority. That petition was disposed of by my brother, was without Saood Jan J., on 6th July 1977, as having borne fruit, in view of an undertaking given that the police would re‑start the investigation.

6. The arguments before me on behalf of the petitioners were addressed by Mr. Rashid Murtaza Qureshi as well as by Mr. R.A. Awan, Advocates. While the latter restricted himself to the factual and the legal aspects of the matter, Mr. Rashid Murtaza Qureshi went on to urge that the High Court should deal with the police brutality with a heavy hand and for this should invoke the Islamic Law. He complained that the superior Courts in Pakistan have for the last 32 years side‑tracked the enforcement of the Islamic Law but now it was time they, performed their duty.

7. As the grievance is mainly against the conduct of the police, the petitioners did not press their application qua the case arising from F. I. R. No. 91, which had been lodged by Muhammad Din. Learned counsel for the petitioners vehemently challenged the veracity of the story in the two F. I. Rs. lodged by the police, i. e. F. I. R. Nos. 92 and 93. He produced medico‑legal reports in respect of the injuries sustain ed by Mst. Inayat Bibi, Mst. Sadiqa Bibi, Muhammad Sadiq and Muhammad Sabir petitioners. Mst. Inayat Bibi had suffered four simple injuries caused by blunt weapon, one being on the forehead and another on the elbow. Mst. Sadiqa Bibi had received two injuries, one of which was on the chest, both being simple and caused by blunt weapon. Muhammad Sadiq had, however, sustained as many as fifteen injuries, all caused by blunt weapon. Injury No. I which was a lacerated wound 3‑1/2" skin deep anterior part of bead left of mid‑line", was kept under observation but after X‑ray report, was found to be simple." The other injuries were on the head region, shoulder, chest, back of the chest, arms and the knees, and were simple. Muhammad Sabir had five simple injuries on his person, one of which was on the right chest and all had been caused by blunt weapon. It is to be noted that Fazal Mahmud A. S. I.‑complainant in F. I. R. No. 92 had also five simple injuries consisting of lacerations and contusions, all caused by blunt weapon.

8. The contention on the factual plane was that the story of the police in F. I. R. No. 92 was false and belied .by the numerous injuries sustained by the petitioners. The proceedings against the petitioners were dubbed as being in terrorism and the result of brutality and perver sity. It was asserted on the legal plane that as the police had tried to enter the house without any warrant, the petitioners had a right of private defence and that the Magistrate could not take cognizance of the case as in respect of one of the offences, being under section 186; P. P. C., there was no complaint made to the Court in the manner pres cribed by section 195, Cr. P. C. It was also pointed out that the, F. I. R. gives no adequate description of the three ladies and no identification parade having been held, it could not be said with any certainty that these ladies had participated in the alleged crimes. It was, therefore, prayed that the proceeding, at least against them, ' was liable to be' quashed.

9. In regard to F. 1. R. No. 93, not only the facts were vehemently controverted but it was also asserted that the police, headed by the S. O. H. on the arrival at the house, had inflicted the injuries on Muhammad Sadiq and the others and as a number of the injuries on Muhammad Sadiq was on the head region and looked likely to be fatal, the police had mala fide concocted the story of attempted suicide. It was also urged that the nature and location of the injuries sustained by Muhammad Sadiq thoroughly belied the allegation of any attempt on his part to commit suicide, and instead supported the petitioners' case of the injuries having been inflicted by the police party itself.

10. There is reason to believe prima facie that the story as given in F. 1. Rs. Nos. 92 and 93, is not the whole truth. They do not speak of or explain the injuries sustained by Mst. Inayat Bibi, Mst. Sadiqa Bibi and Muhammad Sabir. Nor are the contents of F. I. R. No. 93 appa rently capable of explaining the large number, the location and the nature of the injuries sustained by Muhammad Sadiq. It appears from the departmental file produced by counsel for the state an extract of which has been furnished, that the D. I. G. Lahore, in his report made to the I. G. under U. O. No. 2581/P A, dated 8th .Tune 1977, had doubted the facts of F. I. R. No. 93. He had stated:‑

S. I. Iftikhar Ahmed S. H. O. took Muhammad Sabir and Muhammad Sadiq sons of Mst. Allah Rakhi to Police Station Yakki Gate where Muhammad Sadiq indulged in filthy abuses in public towards S. I. Iftikhar Ahmed S. H. O. and resisted his detention. At this point the Police did use force towards Muhammad Sadiq, which led to the registration of case F. I. R. No. 93, dated 27th May, 1977 under section 309, P. P. C., against Muhammad Sadiq, which is only partially based on facts."

In. spite of their doubt about the correctness of the allegations in F. I. R. No. 93, the police authorities, I observe with dismay, did not consider it necessary to probe the matter further and to take action against the police officials if found guilty of having transgressed their limits. The police officials suspected of delinquency towards the members of the public were, thus instead of being punished, allowed to prosecute their apparent victims, if the police high‑ups are chary of dealing effectively with the high handedness on the part of their subordinates, all their protestations that they are there to protect the public, must go in vain.

11. Nevertheless, since there are two versions, one as given in the F. I. R. and the other as asserted by the petitioners, on the basis of which assertion they have brought a complaint case before the Magistrate, no adjudication is possible except through the trial. In considering the question of quashing a criminal proceeding at the preliminary stage when evidence is yet to come, the High Court has to take the allegations against the accused at their face value and accept the same in their entirety and then see if they do not constitute any offence for which a prosecution be warranted. The High Court in its limited jurisdiction under section 561‑A, Cr. P. C. will not embark upon an enquiry to ascertain the innocence or otherwise of the accused. If, therefore, the allegations do disclose an offence, the case cannot be quashed merely because the accused denies the allegations and asserts that he has a good defence, when his defence is yet to come. In the matter before me, it cannot be said that the allega tions made do not disclose an offence under the Penal Code.

12. It is also the rule that where an alternative remedy is available. resort to inherent jurisdiction ought not to be had. In Ghulam Muhammad v. Muzammal Khan etc. (P L D 1967 S C 317) the Supreme Court while interpreting section 561‑A, Cr. P. C. had observed

It is generally accepted that the inherent jurisdiction should not normally be invoked where another remedy is available. In herent powers are preserved to meet a lacuna in the Criminal Procedure Code in extraordinary cases and are not intended for vesting the High Courts with powers to make any order, which they are pleased to consider to be in the interests of justice. These powers are as much controlled by principles and precedents as are its express statutory powers."

The same view had prevailed in Sher Khan etc. v. The State (1968 SC M R 62). The trial Court is empowered under sections 249‑A and 265‑K, Cr. P. C. to acquit an accused at any stage of the case if, after hearing the prosecutor and the accused and for reasons to be recorded, it considers that the charge is groundless or that there is no probability of the accused being convicted of any offence. For this reason, too, the quashment applica tion need not be entertained. See Khushi Muhammad etc. v. State (1979 S C M R 94).

13. As regards the contention that congnizance of the case upon F. 1. R. No. 92, could not be taken for non‑compliance of the provisions of section 195, Cr. P. C. in respect of the offence under section 186, P. P. C., I am of the view that the question of the effect of such non‑compliance on the offence under section 186, P. P. C. as also on the offence not covered by section 195, Cr. P. C. in that F. I. R. must come before the trial Court and as such it will not be proper for me to express any opinion at this stage.

14. In view of the above discussion, the application is dismissed.

Petition dismissed.

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