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Writ Petition No. 572 of 1984, decided on 4th July, 1984

-- Art. 9-Criminal Procedure Code (V of 1898), S. 265-K Proper stage to exercise power under S. 265-K-Case' having been received in trial Court and Court having taken cognizance of case by issuing process to accused, Court, held, was fully empowered to pass order under S. 265-K, Cr. P. C. if it considered that there was no probability of accused being convicted-No particular stage at which power conferred by S. 265-K, Cr. P. C. could be exercised was mentioned in section.

-- Art. 9 - Criminal Procedure Code (V of 1898), S. 561-A Jurisdiction of High Court under S. 561-A, Cr. P. C. not an alternative jurisdiction or an additional jurisdiction but a jurisdiction preserved in interest of justice to redress grievance for which no other procedure was available or provided by Cr. P. C.-Powers under S. 561-A, Cr. P. C. could not be utilized as to interrupt or divert ordinary course of criminal procedure laid down in procedural statute-Provisions of S. 561-A, Cr. P. C. exceptional and not meant to be used as substitute for provisions regarding other remedy existing in Cr. P. C.

Ghulam Muhammad v. Muzamal Khan and 5 others P L D 1967 S C 317 and Khushi Muhammad and 4 others v. The Stare 1979 S C M R 94 fol.

-- Ss, 561-A & 265-K-Petition for quashing of case registered under S. 302, P. P. C.-Petitioner having most appropriate remedy available to request trial Court seized of case to consider his prayer for acquittal under S. 265=K, Cr. P. C. - Application under S. 265-K, Cr. P. C. in fact pending before trial Court and not yet disposed of-Petitioner having an alternative remedy available to him under S. 265-K, held, could not resort to S. 561-A, Cr. P. C.-Application being premature dismissed in limine-Trial Court directed to dispose of application submitted by petitioner under S. 265-K without any delay, to proceed judicially in matter and apply its mind to facts of case and points raised on behalf of petitioner and take decision either with case or act according to S. 265-K, Cr. P. C.

Dr. Khalid Ranjha for Petitioner.

This petition under Article 9 of the Provisional Constitution Order, 1981 seeks quashment of the case registered against the petitioner under section 302, P. P. C.

2. The petitioner inter alia contends that on 8th June, 1972 a case was registered at P. S. City, D. G. Khan at the instance of one Hafiz Mahmood-ul-Hassan for the murder of Dr. Nazir Ahmad Exh. M. N. A. The prosecution story was that two persons riding a scooter reached the shop of Dr. Nazir Ahmad deceased. One remained standing at the door, while the other entered into the shop and fired three shots at the deceased, two of which hit the deceased and proved fatal. During investigation it transpired that it was Shah Nawaz Sadozai and Farid Chandio who had committed the murder of Dr. Nazir Ahmad. Farid Chandio was got discharged for want of evidence while Shah Nawaz Sadozai stood the trial. The learned Sessions Judge, D. G. Khan acquitted Shah Nawaz Sadozai by giving him the benefit of doubt on 21st January, 1974. Later an order was passed by the Federal Government directing re-investigation of the case through F. I. A. and consequently the police officials namely Mushtaq Hussain, Muhammad Sadiq and Fateh Nasib were arrested. The petitioner who was serving as S. P. -Dera' Ghazi Khan at the relevant time was also involved on the allegation of hatching a conspiracy for the murder of Dr. Nazir Ahmad. He applied for pre arrest bail which was granted by the High Court on 15th October, 1977. The case is presently pending in the Court of Ch. Muhammad Khalil, Additional Sessions Judge, D. G. Khan. The petitioner had moved the trial Court for his acquittal under section 265-K, Cr. P. C. The said application is yet to be disposed of.

3. The prosecution has cited 92 witnesses in support of its case. None of them has been examined so far. According to the learned Sessions Judge he did not dispose of the application under section 265-K, Cr. P. C. as the attendance of all the accused could not be procured and he did not consider it proper to make any premature assessment of the case and since the proper stage had not yet been reached he did not, there fore, consider it advisable to give any premature finding lest it should adversely affect the merits of the case.

Section 265-K, Cr..P. C. reads as under: -

"Nothing in this Chapter shall be deemed to prevent a Court from acquitting 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 there is no probability of the accused being convicted of any offence."

A bare reading of the section would show that it does not speak or any particular stage at which the power conferred by the said provision can be exercised. The view of the learned Sessions Judge that the proper stage for the exercise of this power would be at the time of framing of charge has no basis or warrant in law. No such stage has been mentioned in the aforementioned section. On the other hand, it provides that nothing shall be deemed to prevent the Court from acquitting an accused at any stage of the case.

4. Since the case has been received in the Court of learned Session Judge and he has taken cognizance of it by issuing process to the accused he is fully empowered to pass an order under section 265-K if he considers that there is no probability of the accused being convicted of any offence.

So far as the exercise of powers under section 561-A, Cr. P. C. by this Court is concerned, it is a settled proposition of law that the inherent jurisdiction given by section 561-A is not an alternative jurisdiction, or an additional jurisdiction but is a jurisdiction preserved in the interest; a of justice to redress the grievances for which no other procedure is available or provided by the Code itself. And the power given by this section can certainly not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. Provisions of section 561-A, Cr. P. C. are exceptional and are not meant to be used as substitute for the provision regarding other remedy existing in the Code.

5. These principles have been enunciated in Ghulam Muhammad v. Muzamal Khan and S others (PLD1967SC317) and Khushi Muhammad and 4 others v. The State (1979 S C M R 94).

6. Under the law, as it now stands, the learned Sessions Judge can acquit the petitioner under section 265-K, Cr. P. C. at any stage of the proceeding and in these circumstances the most appropriate remedy for the petitioner would be to request the learned Sessions Judge seized of the case to consider his prayer for acquittal. In fact, the petitioner has already moved the learned Sessions Judge and his application is yet to be disposed of.

7. In view of the above position, since the petitioner has an alternate remedy available to him under section 265-K, Cr. P. C. resort cannot be had to section 561-A, Cr. P. C. Accordingly, petition being premature dismissed in limine.

8. The trial Court is directed to dispose of the application submitted by the petitioner under section 265-K, Cr. P. C. without any delay. It shall proceed judicially in the matter and apply its mind to the facts of the case and the points raised on behalf of the petitioner and take decision either to proceed with the case or act according to the aforementioned provision of law.

M. Z. M. Petition dismissed.

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