PLJ 2022 Lahore 166
Constitution of Pakistan, 1973--
----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 420, 468 & 471--Quashing of FIR--Second marriage--Lodging of FIR--Another FIR was lodged on same story--Application u/S. 249-A, Cr.P.C.--Dismissed--Second marriage was not challenge by second wife--Aggrieved party--Cognizance of case--Challenge to--First wife has not challenged second marriage of her husband (Petitioner) who is aggrieved party in terms of filing a complaint u/S. 6 (5) of The Muslim Family laws Ordinance, 1961--Respondent being brother of (first wife) cannot be termed as an aggrieved party nor could be authorized to file such a complaint--When first wife being sine qua non for initiating proceedings, an alternate illegal course that too through a person not aggrieved at all is nothing but farce--Magistrate was not justified in taking cognizance of case, which was exclusively triable by family Court--All proceedings right from very beginning conducted by Magistrate are declared corum non judice-- FIR being false owing to mistake of law stands quashed--Petition allowed. [P. 176] F, G & H
Constitution of Pakistan, 1973--
----Art. 199--Extraordinary jurisdiction--If no other remedy is available High Court can undo wrong in its extra ordinary jurisdiction--Since then, High Court is exercising jurisdiction for quashing of FIR.
[P. 173] A
Criminal Procedure Code, 1898 (V of 1898)--
----S. 561-A--Inherent power--Section 561-A, Cr.P.C was available to exercise jurisdiction by High Court in its inherent power to secure ends of justice and to prevent abuse of process of Court yet such power is sparingly used by High Court in appropriate case only.
[Pp. 173 & 174] B
Criminal Procedure Code, 1898 (V of 1898)--
----S. 249-A--Power of magistrate--Power of Magistrate to acquit accused at any stage: Nothing in this Chapter shall be deemed to prevent a Magistrate from acquitting an accused at any stage of case if after hearing prosecutor and accused and for reasons to be recorded, he considers that charge is groundless or that there is no probability of accused being convicted of any offence.
[Pp. 174 & 175] C
Criminal Procedure Code, 1898 (V of 1898)--
----S. 561-A--Constitution of Pakistan, 1973, Art. 199--Powers of High Court to quashing FIR--Subordinate criminal Courts are authorized to acquit accused at any stage of case and this power is synonymous to one High Court exercise u/S. 561-A Cr. P.C, but if they fail to exercise powers then High Court either under Article 199 of Constitution of Islamic Republic of Pakistan or under Section 561-A of Cr. P.C. can either quash proceedings pending in Court subordinate thereto or quash FIR. [P. 175] D
2000 SCMR 122 & 2012 SCMR 94 ref.
Family Court Act, 1964 (XXXV of 1964)----
----Ss. 5 & 20--Conditions of nikahnama--It is only family Court that could decide any matter relating to terms and conditions of Nikah Nama and fate of such permission letter touches that condition whether it is genuine or otherwise. [P. 175] E
Rana Qaisar Ali Khan, Advocate for Petitioner.
Ch. Manzoor Ahmad Warraich, AAG for State.
Ch. Attique Intisar Gujjar, Advocate for Respondent/ Complainant.
Date of hearing: 23.12.2021.
PLJ 2022 Lahore 166
Present: Muhammad Ajmal Rafiq, J.
MUHAMMAD GHAZANFAR NAVEED--Petitioner
versus
STATE, etc.--Respondents
W.P. No. 43081-Q of 2021, heard on 23.12.2021.
Order
Through the instant writ petition the petitioner (accused) has sought quashing of FIR No. 398/2013 dated 23.07.2013 under sections 420, 468, 471 PPC registered at police station Sharaqpur Sharif, District Sheikhupura.
2. Episode of 10 years' trauma upon petitioner carried a telltale, how was he pushed in a cage like situation where he could move to- and-fro yet justiceless against the protracted criminal process once started in year 2011, despite cancellation of FIR, he on similar pedestal with different story was booked in another chaotic circle and since 2013 he is looking up into skies while clutched in handy, tidy and squeezed whirls, though knocked the door of trial Court for like relief under Section 249-A Cr. P.C., but being unsuccessful in getting any decision, in the menatime begged before this Court for relief of final escape from frivolous net thrown against him in the form of malicious FIR which was got registered even not by an aggrieved person.
3. The contention of learned counsel for the petitioner is that respondent/complainant (Khalil Akbar) brother of petitioner's first wife (Mst. Naseem Ara) earlier on 15.12.2011 got lodged an FIR No. 750/2011 under Section 506 PPC at police station Sharaqpur Sharif, Sheikhupura alleging that the petitioner contracted second marriage on 20.6.2011 without the consent of his first wife (Mst. Nasim Ara) and when she agitated the matter the petitioner extended threats of throwing acid in order to take her life. According to the contents of the said FIR the petitioner had shown himself as a bachelor; such FIR was recommended for cancellation which report was agreed and finally the same was cancelled as being false by the learned Judicial Magistrate vide order dated 13.06.2012. Thereafter, same Khalil Akbar got lodged the present FIR taking the same story with a twist that petitioner contracted second marriage with Mst. Aqsa on 20.06.2011 by preparing a forged permission letter dated 19.05.2011 purportedly issued by Mst. Nasim Ara, the instant FIR was registered and investigation was carried out and since 2013 the matter is pending before the Court of Magistrate for trial. At one stage, due to non-appearance of witnesses the file was consigned to record, lateron, however, the respondent/complainant applied for retrieval of such trial which was accordingly ordered and thereupon the petitioner filed an application under Section 249-A, Cr.P.C., which though was dismissed yet before its dismissal the petitioner filed the instant writ petition for quashing of the FIR. The main grounds urged by learned counsel in support of this petition are that under the dicta laid down by the apex Court in the case "Mst. Sughran Bibi v. The State" (PLD 2018 SC 595), no second FIR is permissible on the same facts and there is no difference between two FIRs; the matter is between the spouses inter-se and touches the terms and conditions of marriage certificate/Nikah Nama, in such an eventuality the ordinary Court loses jurisdiction in view of special provisions contained in the Family Courts Act, 1964, he referred Section 5 and 20 of such Act in support of his contentions. The learned counsel for the petitioner also referred a judgment dated 13.09.2021 passed by this Court in Criminal Revision No. 168/2019 "Muzaffar Nawaz versus Ishrat Rasool, etc.", whereby such matters were declared as triable by family Court.
4. On the other hand, learned counsel for the respondent/ complainant opposed this petition on the ground that this is not the matter which is to be tried by family Court, because forgery committed by the petitioner does not fall within the purview of a family dispute, therefore, the learned Magistrate has rightly assumed the jurisdiction and that it is not a case of second FIR, rather a fact which was disclosed to the complainant later, for which he had obtained expert report and the forgery is to be tried separately as an ordinary case and this Court cannot quash the FIR in Constitutional jurisdiction.
5. Arguments of proponents were heard; material preferred was examined in the light of facts of the case; before proceeding further it would be appropriate to see the legislative history of powers vested in High Court under Constitutional provisions and Section
561-A Cr. P.C. to quash FIR or proceedings of trial Court.
6. The legislative history of jurisdiction, powers and authority vested in High Court is reflective of devolution of powers with passage of time to adhere to the demands either through Constitutional provision or by a Statute amendment. The Government of India Act 1915 was the first document for establishment of Indian High Courts. By virtue of Section 101 of said Act, high Courts were constituted as under;
(1) The High Courts referred to in this Act are the High Courts of judicature for the time being established in British India by letters patent.
(2) Each High Court shall consist of a Chief Justice and as many other judges as His Majesty may think fit to appoint.
Later parts of section carry provisos to this section relating to appointment of additional judges and Sub Section 3, 4 & 5 explain the qualification for appointment, quota for seats and name and style of Courts in different states.
Jurisdiction of high Courts was determined through Section 106 of Act ibid as under:
(1) The several high Courts are Court of records and have such jurisdiction, original and appellate, including admiralty jurisdiction, in respect of offences committed on the high seas , and all such powers and authority over or in relation to the administration of justice, including power to appoint clerks and other ministerial officers of the Court, and power to make rules for regulating the practice of the Court, as are vested in them by letters patent, and subject to the provisions of any such letters patent, all such jurisdiction, powers and authority as are vested in those Courts respectively at the commencement of this Act.
(1a) The letters patent establishing or vesting jurisdiction, powers or authority in a high Court may be amended from time to time by His Majesty for further letters patent.
(2) The high Courts have not and may not exercise any original jurisdiction in any matter concerning the revenue, or concerning any act ordered or done in the collection thereof according to the usage and practice of the country or the law for the time being in force.
Section 113 of said Act further authorized to establish additional high Court which runs as under:
His Majesty may, if he sees fit, by letters patent, establish a high Court of judicature in any territory in British India, whether or not included within the limits of the local jurisdiction of another high Court, and confer on any high Court so established any such jurisdiction, powers or authority as are vested in or may be conferred on any high Court existing at the commencement of this Act; and, where a high Court is so established in any area included within the limits of the local jurisdiction of another high Court, His Majesty may by letters patent alter those limits, and make such incidental, consequential and supplemental provisions as may appear to be necessary by reason of the alteration.
The above provisions reflect that a high Court can be established and jurisdiction, powers and authority could vest in through letters patent by His Majesty as authorized under above cited Act; therefore, in pursuance thereof through letters patent, Lahore High Court was established on 31st March, 1919 with following preamble:
Whereas by an Act of Parliament passed in the Fifth and Sixth years of Our Reign and called the Government of India Act, 1915, it was amongst other things enacted that it should be lawful for Us by Letters Patent to establish a High Court of Judicature in any territory in British India (now Pakistan) whether or not included within the limits of the local jurisdiction of another High Court and to confer on any High Court so established any such jurisdiction, powers and authority as were vested in or might be conferred on any High Court existing at the commencement of that Act:
And whereas the provinces of the Punjab * * * is now subject to the jurisdiction of the Lahore High Court Lahore which was established by an Act of the Governor-General of India in Council, being Act No. XXIII of 1915, and was continued by latter enactments and no part of the said province is included within the limits of the local jurisdiction of any High Court.
Cl.1. Establishment of High Court at Lahore. Now know yet that we, upon full consideration of the premises and of Our Special grace, certain knowledge and mere motion, have though fit to erect and establish, and by these presents. We do accordingly for Us, our heirs and successors, erect and establish, for the provinces of the Punjab * * * aforesaid, with effect from the date of the publication of these, presents in the Gazette of India, a Lahore High Court Lahore, and we do hereby constitute the said Court to be a Court of records.
CI. 5. of letters patent deals with writs, etc. to issue in the name of State and under seal; whereas, criminal jurisdiction of High Court was scoped as under:
Cl. 15. Ordinary Criminal original jurisdiction of the Lahore High Court. And we do further ordain that the Lahore High Court Lahore shall have ordinary original criminal jurisdiction in respect of all such persons within the Province of Punjab (now Lahore High Court Lahore) had such criminal jurisdiction over immediately before the publication of these presents.
Cl. 16. Jurisdiction as to persons. And we do further ordain that the Lahore High Court Lahore, in the exercise of its ordinary original criminal jurisdiction, shall be empowered to try all persons brought before it in the course of law.
Cl. 17. Extra Ordinary jurisdiction. And we do further ordain that the Lahore High Court Lahore shall have extra ordinary original criminal jurisdiction over all persons residing in place within the authority to try at its discretion any such persons before it on charge preferred by any magistrate or other officer specially empowered by the Government in that behalf.
The above powers were directed to be regulated through Code of Criminal Procedure, 1898 for which following clause was introduced;
Cl 28. Regulation of proceedings. And we do further ordain that the procedure in all criminal cases brought before the Lahore High Court Lahore shall be regulated by the Code of Criminal Procedure being an Act No. V of 1898, passed by the Governor General in Council, or by such further or other laws in relation to criminal procedure as may have or may be made by competent legislative authority in India.
7. This ordinary and extra ordinary jurisdiction though was vested on High Court yet it was mainly related to trial of any person; miscellaneous proceedings though were being regulated yet no exact provisions was available to save the inherent power of high Court under code of criminal procedure. Polity was being extended and crime was reported at a comparably higher rate, ingenious methods were being invented to trap the individuals in unnecessary litigation, false and frivolous reporting of crime was rampant; therefore, in order to circumvent the process or to save the innocent breachers or scape goats, legislature felt the necessity and introduced drastic changes in code of criminal procedure through new legislation in the form of "Code of Criminal Procedure (Amendment) Act, 1923 (Act No. XVIII of 1923)"; whereby many sections of Code of criminal procedure were amended, similarly, under said Act at item No. 156, following new section was also introduced;
561-A. Saving of inherent power of High Court: Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
Necessity of above section was well explained by Honourable Supreme Court in a case reported in "Bashir Ahmad v. Zafar-ul-Islam and others" (PLD 2004 SC 298) The saving of inherent power of high Court resulted in passing of appropriate orders of nature mentioned in the section on its own when there was no other remedy and on references sent by subordinate Courts.
8. The powers of existing High Courts were given protection even in a later legal instrument in the form of Government of India Act 1935; relevant Section 223 is as under: -
223. Subject to the provisions of this Part of this Act, to the provisions of any Order in Council made under this or any other Act and to the provisions of any Act of the appropriate Legislature enacted by virtue of powers conferred on that Legislature by this Act, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in division Courts, shall be the same as immediately before the commencement of Part III of this Act.
[Emphasize supplied]
Part III of Act deals with Provincial legislature which means all the existing powers of High Court shall be subject to any further legislation. Later when Pakistan came into being, the Government of India Act, 1935 was adopted to run the government machinery through such legislated document.
9. A trend in our society of false implication of innocent people was rampant and the Courts were put on guard to see through the case on the principle of "Sifting the grain from the chaff” that was the reason principle of "Falsus in uno, falsus in omni bus" was not applicable in Pakistan since early 50's. There was no provision available in the code of criminal procedure 1898 to the subordinate Courts to extend early escape from the net thrown on the accused. Only remedy available was being regulated through constitutional provision because by then provision relating to sending reference u/S. 432, 433 Cr. P.C stood omitted by AO of 1949. Historically after advent of Pakistan, The High Court was established through first Constitution of Pakistan, 1956 and Article 170 of said Constitution gave such powers to The High Court in following terms;
Notwithstanding anything in Article 22, each High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, for the enforcement of any of the right conferred by Part II and for any other purpose.
A-class cancellation; when the case is maliciously false or false owing to mistake of law or fact.
B-class cancellation; found commission of non-cognizable offence.
C-class cancellation: matter is for a civil suit.
The above has duly been explained in Rule 24.7 of Police Rules, 1934. In appropriate cases, Court can also pass like orders under Section 173 (3) of, Cr.P.C. Still the power derived by the Courts through such modes was implied. Though in appropriate cases, Court can have resort to Section 249 Cr. P.C. and postpone the case sine-die, yet it does not help to finally strangulate the criminal process against the accused because on the information or application by concerned party or report by police case can be reopened. Therefore, it was expedient for legislature to introduce a provision in Cr. P.C to give an inherent power like provision to the Subordinate Criminal Courts, the Law Reforms Ordinance, 1972 once again brought drastic changes in Cr.P.C. and apart from others, Chapter XXII-A was introduced for sessions trial which includes Section 265-K, it runs as under:
265-K. Power of Court to acquit accused at any stage: 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 not probability of the accused being convicted of any offence.
This section was applicable for session trial only and a sessions Judge could exercise powers under this section for an offence triable by Court of session alone. No provision of like nature was available to the Magistrates; therefore, Section 249-A Cr. P.C was inserted through the Code of Criminal Procedure (Amendment) Ordinance, 1977 (Ordinance of XXXVI of 1977) which reads as under;
12. It was urged that application of petitioner u/S. 249-A Cr. P.C has now been dismissed during these pending proceedings, therefore, he may be directed to file revision against such order. Suffice it to say, such application was filed before the trial Court on 09.04.2016 and the order sheet annexed shows it was pending even on 26.06.2021 and when the present writ petition was filed on 30.06.2021, it was reported as pending too. It would be a mockery of process if the petitioner is once against sent back to take a round of lower Court and then to file this writ petition. As highlighted above, Honourable Supreme Court has held that it is not necessary that petitioner always go to the trial Court at first instance before approaching this Court for the like relief, if the circumstances warrant interference it must be decided by this Court and circumstances as highlighted above do exist in favour of petitioner to exercise powers under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
(Y.A.) Petition allowed
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