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Criminal Miscellaneous Application No. 1319 of 1985, decided on 17th April 1986.

‑‑Ss. 249‑A & 561‑A‑‑Penal Code (XLV of 1860), S. 500/501‑‑Complaint case, quashing of‑‑Petitioners summoned by Magistrate but not appearing before him‑‑Petitioners filed quashment application instead‑‑Powers of High Court under S. 249‑A, Cr.P.C. being coextensive and concurrent, it would, held, be appropriate to approach Trial Court in first instance although entertaining quashment application in appropriate cases would not be barred‑‑Application for quashment, being premature and as such not maintainable in circumstances‑‑Petitioners advised to move application under S. 249‑A, Cr.P.C.

1982 P Cr. L J 24; Nasir Ali v . Munshi Mehar Khan P L D 1981 C 607; 1981 P Cr. L J 1073, 1984 P Cr. L J 764; P L D 1985 Lah. 662 and Mian Munir Ahmad v. State 1985 S C M R 257 ref.

Rustam J. E. Kaikoabad for Applicants.

Nemo for the State.

Mustafa Lakhani for Respondent No.2.

Date of hearing: 6th April, 1986.

This application under section 561‑A, Cr.P.C. is filed, seeking quashment of the direct complaint filed by the respondent No.2 under sectiun 500; 501, P . P . C . at present pending in the Court of Additional City Magistrate, Kharadar, Karachi.

2.The complaint was filed against applicants and 6 others by respondent Naeem Ahmad. The Magistrate after recording the statements of some witnesses during the course of preliminary enquiry registered the case against the applicants and issued summons for their appearance.

3. I have heard Mr. Rustam J. E. Kaikoabad, at length. He was argued the case on merits and also raised some legal points and submitted that no prima facie case has been made out and process has wrongly been issued.

4. Mr. Mustafa Lakhani appearing for the respondent No.2 submitted that the applicants have not surrendered before the trial Magistrate up to this time, therefore, this quashment application is not maintainable. He has referred to the case reported in 1982 P Cr. L J 24. He has also taken another legal plea that applicants have not moved the trial Court as provided under section 249‑A, Cr.P.C. He has referred to the cases reported in P L D 1981 S C 607, 1981 P Cr. L J 1073, 1984 P Cr. L J 764 and P L D 1985 Lah. 662.

No one has appeared for the State.

5. Mr. Kaikoabad argued that quashment application is competent and it is not necessary to move the trial Court. He has cited so many cases on this point.

6. The petitioners have been summoned by the City Magistrate t stand trial in his Court. They did not appear in pursuance of the process of the Court but filed this quashment application. The process has been issued in form of summons for appearing of the petitioners. This kind of process cannot create any humiliation to the petitioners. In my view they should appear in the first instance. The prayer for quashment of the proceedings in these circumstances is premature. S far next legal point is concerned, I like to refer a case of Nasir Ali v. Munshi Mehar Khan reported in P L D 1981 S C 607. In that case it has been held that accused could claim order of acquittal from the Magistrate at any stage if charge is found groundless. No doubt in exercise of powers vested in section 561‑A, Cr.P.C. the High Court can quash the proceedings but "quashment of proceeding at early stage will give an unfortunate impression of stifling of criminal prosecution by exercise of an extra‑ordinary power which is given for the dispensation of complete justice, in form provided by law". It is, therefore, necessary that such cases should be examined further by the trial Court and proper order is to be passed. In case accused fail to get remedy they are at liberty to move in High Court for quashment. I also like to refer to a case of Mian Muneer Ahmad v. State reported in 1985 S C M R 257 wherein it has been held that there is nothing t bar the High Court for entertaining quashment application in appropriate cases but it would be appropriate to approach the trial Court in the first instance as powers of High Court under section 249‑A, Cr.P.C. being co‑extensive and concurrent. In these circumstances without making any observations on the merits of the case, the application for quashment at this stage is not maintainable which is accordingly dismissed. The applicants should first appear before the trial Court and it is also advisable that they should move application under section 249‑A, Cr.P.C.

S. A. Application dismissed.

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