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Criminal Miscellaneous No. 346.Q of 1981, decided on 3rd March, 1982.

----S 561-A- Quashing of proceedings- Neither any evidence nor statement of accused under S. 342, Cr. P. C. recorded-Held, High Court cannot sit in judgment to quash proceedings even if no case made out on basis of material collected by investigation.

--S. 561-A-Whether any offence made out or not, Held, can be determined by trial Court after adducing evidence.

-- S. 561-A-Delay in registration of a case-Not always fatal---Whether explanation for such delay satisfactory, trial Court yet to go into-Held, power under S. 561-A cannot be allowed to short circuit prosecution.-[Delay).

Mian Abdur Rashid for Petitioners.

Qazi Muhammad Yasin for the State.

Dates of hearing : 2nd and 3rd March, 1982,

Khurshid Ahmad and 6 other petitioners were challaned in Court for trial under section 147/448, P. P. C. for rioting and for house trespass Before any charge was framed petitioners filed an application under section 249-A, Cr. P. C. which was rejected by the learned trial Magistrate as pre mature, on 19th December, 1981. Thereafter, petitioners have filed the petition under section 561-A Cr. P. C. for quashment of the proceedings against them. The F. I. R. in this case was registered on a written comp laint addressed to the Inspector-General of Police in which it was alleged that the petitioners took over possession of the shop from the complainant forciby and locked it with the goods and articles of the complainant lying inside the shop.

2. Learned counsel for the petitioners has submitted that the F. I. R. in this case was registered after a delay 7/8 months as would appear from the statements of the prosecution witnesses recorded under section 161, Cr. P. C, and also because no date and time of occurrence was given in the complaint lodged in the case. Learned counsel has further urged that accor ding to the allegations only a lock was put on the entrance door of the shop and ingredients of section 441, P. P. C. are missing in the allegations due to which if accused-petitioners are put to trial it will tantamount the abuse of the process of law.

3. Learned counsel for the State has submitted that the petitioners are alleged to have forcibly occupied the shop in question by putting pressure one the complainant and in the presence of the complainant thereby obstructing him from using it and that the delay in lodging of the F. I. R. has been explained in a satisfactory manner. Learned counsel for the State has fur ther submitted that evidence in the case having not yet been recorded the High Court may refrain from interfering with the proceedings of trial.

4. The circumstances appearing in the case are that on a written appli cation addressed to the Inspector-General of Police without mentioning date and time of occurrence an F. I. R. was registered at the Police Station on 29th August, 1981 for an offence under sections 147 and 448, P. P. C. In paragraph 4 thereof it was alleged that when the complainant was opening the shop in question the petitioners reached there, abused the complainant, beat him and took over possession of the shop forcibly by placing lock on its entrance door when the goods and articles of the complainant remained lying in the shop and all that was pre-planned. The challan in this case was filed in Court and before the charge could be framed petitioners moved an application under section 249-A, Cr. P. C. for acquitting them. The learned Magistrate rejected that 4pplication because no evidence in the case had been recorded till then. It is a common ground that no evidence in the case has been recorded nor any statement of the accused-petitioners under section 342, Cr. P. C. had been recorded by the trial Court. Even if no case is made out on the basis of material collected by the investigation this Court cannot sit in judgment to quash proceedings. Assuming the facts stated in the F. I. R. and statements recorded under section 161, Cr. P. C. to be correct it cannot be said that the charge against the accused-petitioners is groundless or there is probability of the petitioners being convicted of any offence. The question whether no penal offence has been made out can bet determined after the evidence is adduced by the parties, and it is for the trial Court to determine all these questions. Delay in registration of the case has not always been fatal and whether the explanation is satisfactory or not the trial Court has yet to go into it. The extraordinary power of the High Court under section 561-A, Cr. P. C. cannot be allowed to be made instrument in the hands of the accused to short circuit the prosecution. They learned trial Magistrate rightly rejected the application under section 249-A, Cr. P. C. because it was premature. As at present, I do not find any justification to quash the proceedings before the trial Court. Therefore, this application is dismissed.

Application dismissed.

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