PLJ 2021 Cr.C. (Note) 47
Criminal Procedure Code, 1898 (V of 1898)--
----S. 561-A, 193, 194 & 195--Quashment of judgment passed by ASJ/MCTC--Acquittal of accused persons--Initiation of criminal proceedings against PWs--Inherent jurisdiction, Invoked of--Provision of Section 561-A, Cr.P.C. cannot be used to override express provision of law--Inherent jurisdiction of Court under section ibid is additional--When other remedy is available with aggrieved person, question to invoke inherent power of High Court would not arise. As far as directions of trial Court for initiation of proceedings u/S. 195 Cr.P.C. against Petitioners is concerned, Hon’able Apex Court has already declared rule fale falsus in uni falsus in omnibus applicable in country--Petition dismissed in limine. [Para 5 & 7] A & B
Mr. Shoaib Ahmed Mengal, Advocate (absent) for Applicants.
Date of hearing: 26.6.2014.
PLJ 2021 Cr.C. (Note) 47
[Balochistan High Court, Quetta]
Present: Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ.
versus
ADDITIONAL SESSIONS JUDGE/MODEL CRIMINAL TRIAL COURT, BARKHAN AT RAKHNI and another --Respondents
Crl. Misc. (Quashment) No. 257 of 2019, decided on 22.10.2019.
Order
Abdul Hameed Baloch, J.--The following prayer has been made in this petition:
“It is accordingly respectfully prayed that vide judgment dated 02.04.2019, passed by (Respondent No. 1) Addition Sessions Judge/Model Criminal Trial Court (MCTC) Barkhan at Rakhni may be quashed and after quashing any subsequent action on the based whereof as directed to Judicial Magistrate Barkhan may kindly be suspended, in the interest of justice, equity and fair play.”
2. Brief facts of the prosecution case are that on 12.05.2017 the complainant Fazul Khan lodged the referred FIR No. 73/2017 with Levies Thana Nahar Kot under Sections 302, 147, 148, 149, P.P.C. to the effect that on the stated date at about 9:30 a.m., his son was working on his lands situated at Dargarri, meanwhile appellant along with absconding accused persons armed with Kalashnikovs came there and asked him for providing a way in his land for supply of water but his son refused, as such they fired upon him, resultantly he received bullet injuries and succumbed to injuries at the spot. Hence the instant case was registered.
3. After submission of challan and full dressed trial the Additional Sessions Judge/Model Criminal Trial Court (MCTC) Barkhan at Rakhni (trial Court) vide judgment dated 02.02.2019 (the impugned judgment), acquitted the accused persons facing trial of the charge with further direction to the Judicial Magistrate Barkhan to initiate the proceedings under Section 195, Cr.P.C. against the prosecution witness namely Fazal Khan son of Ahmed Khan, Mian Khan son of Hazar Khan and Jalal Khan son of Jamal Khan for giving false evidence and commission of offence under Sections 193, 194 and 195, P.P.C. Hence this petition.
It is to be noted that despite service of notice the learned counsel for petitioner remained absent, as such we are left with no other option but to decide the petition after going through the record.
4. The record reveals that the learned trial Court acquitted the arrested accused namely Naik Muhammad of the charge vide impugned judgment, whereafter the Petitioner No. 1 filed Criminal Acquittal Appeal No. 136 of 2019 before this Court, which was dismissed in limine by upholding the impugned judgment passed by the trial Court.
5. The petitioner has invoked the inherent jurisdiction of this Court. The provision of Section 561-A, Cr.P.C. cannot be used to override the express provision of law. The inherent jurisdiction of the Court under Section 561-A, Cr.P.C. is additional. When other remedy is available with the aggrieved person the question to invoke the inherent power of this Court under Section 561-A, Cr.P.C. would not arise.
6. The Hon’ble Supreme Court, while dealing with the proposition in case of Asif Ali Zardari (1994 SCMR 798) observed that powers under Section 561-A, Cr.P.C. can be exercised to prevent abuse of the process of any Court or to secure the ends of justice. Such powers cannot be exercised mechanically or in every case where there is allegation of false implication or of the evidence being false. Exercise of such powers cannot further the ends of justice, if an exercise is undertaken at pretrial stage to determine whether the prosecution evidence likely to come on record is true or false. In the case of Raja Haq Nawaz v. Muhammad Afzal and others (PLD 1967 SC 354), it was held that Quashment of proceedings at an early stage gives an unfortunate impression of stifling of criminal prosecutions, by exercise of an extraordinary power which is given for the dispensation of complete justice, in the forms provided by law. Similar view was taken in the case of Gian Chand v. State (1968 SCMR 380) where it was observed that determination of the guilt or innocence of an accused, depends on totality of facts and circumstances revealed during the trial, and when such a stage had not been reached, the application for Quashment of the proceedings in the trial Court, was rightly rejected by the High Court. Khalid Iftikhar v The State PLD 1997 SC 275 may be referred to in the above context.
7. As far as the directions of the trial Court in the impugned judgment for initiation of proceeding under Section 195, Cr.P.C. against the petitioners is concerned, the Hon’ble apex Court in a judgment reported in a case reported in (PLD 2019 SC 527) declared the rule falsus in uno falsus in omnibus applicable in the country with the following effect:
“3. While attending to this matter we have felt that the deeper issue involved in the matter relates to the fact that the rule falsus in uno falsus in omnibus had in the past been held by the superior Courts of this country to be inapplicable to criminal cases in Pakistan which had gradually encouraged and emboldened witnesses appearing in trials of criminal cases to indulge in falsehood and lies making it more and more difficult for the Courts to discover truth and dispense justice. We have undertaken an exhaustive exercise so as to trace the history of the said rule and to understand how the jurisprudence around it has developed in Pakistan while also adverting to the relevant Islamic and legal provisions dealing with the subject. After a careful consideration of the history of the rule, the relevant Islamic Provisions and the law of the land and after analyzing the precedent case-law available on the subject we have come to the conclusion that the view that the rule is not to be applied to criminal cases in Pakistan was formed as a result of taking into account extraneous and practical considerations, rather than legal and jurisprudential, and the said view is not in accord with the Islamic provisions on the subjects besides militating against the criminal law of this country according to which depositing falsely in a Court and commission of perjury entail serious penal consequences.”
8. While following the judgment supra, we are of the considered opinion that the trial Court has rightly directed for initiating proceedings under Section 195, Cr.P.C.
Thus, in view of above, the Criminal Miscellaneous Quashment Petition is dismissed in limine.
(Z.A.S.) Petition dismissed
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