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Criminal Miscellaneous No. 24/Q of 1984, heard on 3rd April, 1984.

---S. 561-A-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10-- Inherent jurisdiction of High Court under S. 561-A, Cr. P. C. not an alternate or additional jurisdiction--Object of jurisdiction under S. 561-A, Cr. P. C. stated--Such jurisdiction should not normally be invoked where any remedy be available-Inherent powers could be exercised only to prevent abuse of process of Court and in order to advance interest of justice--- Quashing of proceedings at an early stage where no evidence was recorded was likely to give impression of stifling of criminal proceedings-Proceedings could not be quashed simply for the reason that accused claimed that allegations against him were false and fantastic-Petitioners having alternative remedy available under S. 265-K, Cr. P. C., resort could not, therefore, be made to S. 561-A, Cr. P. C. by petitioner.

Ghulam Muhammad v. Muzamnial Khan P L D 1967 S C 317 fol.

Sardar Latif Khan Khosa for Petitioners.

Nemo for the State.

Date of hearing: 3rd April, 1984.

This is an application under section 561-A, Cr. P. C. for the quashment of proceedings pending against the petitioners in the Court of learned Sessions Judge, Vehari, culminating out of F. I. R. dated 12th May, 1982 P. S. Mailsi, District Vehari under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

2. It is contended that the petitioners have been reported by Ahmad Yar complainant to have enticed away his daughters Mst. Zaiba Mai and Nazir Mai from his house. It is also contended that the case is based on false allegations. The alleged abductees were married to Riaz Hussain and Mukhtar Hussain petitioners on 28th March, 1982. Mst. Zaiba Mai and Nazir Mai were produced before a Magistrate on 3rd July, 1982 and their statements under section 164, Cr. P. C. were recorded. They categorically refuted the charge of abduction and stated that they were legally wedded to the petitioners Nos. 1 and 2 and wanted to live with them. The learned Magistrate holding the alleged abductee to be major, allowed them to join petitioners Nos. 1 and 2. They were sent to Darulaman for some time and their stand remaining unchanged they were set at liberty.

Ahmad Yar complainant challenged the said orders by filing a revision in the Court of Additional Sessions Judge, Vehari which was dismissed on 24th October, 1982. The two women were released on bail by the High Court and after their release they rejoined petitioners Nos. 1 and 2 and are living with them happily. Mst. Zaiba Mai and Nazir Mai being pubered adults and having married the petitioners Nos. 1 and 2 of their free will on 28th March, 1982 have not committed any offence. Copies of nikahnama have also been filed alongwith the petition.

It is further stated that both of them filed declaratory suits on 31st March, 1982 at Dera Ghazi Khan and status quo order in respect of the maintenance of their family rights were passed by the civil Court, D. G. Khan. Their suits were ultimately also decreed and after such adjudica tion from the Court, there is absolutely no basis for continuation of the criminal prosecution against the petitioners.

3. I have heard the learned counsel for the petitioners at length. It is an admitted position that present application has been filed, before the learned trial Court was moved under section 265-K, Cr. P. C. for acquitting the petitioners on the ground that there is no probability of the petitioners being convicted of any offence. An alternative remedy being available to the petitioners, resort cannot be made to the provisions of section 561-A, Cr. P. C. In Ghulam Muhammad v. Muzammil Khan (P L D 1967 S C 317), it was held as under:-

"The inherent jurisdiction given by section 561-A is not an alternate jurisdiction or an additional jurisdiction but is a jurisdiction preserved in-the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary- course of criminal procedure as laid down in the procedural statute.

It has been agreed that an alternative remedy being available to the petitioners, namely the provisions of section 249-A, Cr. P. C. the resort could not be made to the provisions of section 561-A, Cr. P. C. There is some force in this submission and we are inclined to agree with it."

The inherent jurisdiction of the High Court should not normally be invoked where any remedy be available. The inherent powers should be exercised only to prevent abuse of the process of the Court and in order to advance interest of justice. The quashment of proceedings at an early stage where no evidence is recorded is likely to give an impression of stiff ing of criminal proceedings. The proceeding cannot be quashed simply for the reason that an accused has claimed that the allegations against him are false and fantastic.

5. In view of the above position, since the petitioners have an alternative remedy available to them under section 265-K, Cr. P. C. resort cannot be made to section 561-A, Cr. P. C.

6. Accordingly, the application being premature is dismissed in limine.

M. Z. M. Application dismissed.

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