Regular Second Appeal No

Stereo. H C J D A 38.
Judgment Sheet
IN THE LAHORE HIGH COURT AT LAHORE
JUDICIAL DEPARTMENT
Writ Petition No.4589/2012
Muhammad Asim Butt versus Javed Iqbal and seven others
JUDGMENT
Date of hearing:
Petitioner by:
3.6.2014
Mr. Naveed Inayat Malik, Advocate.
Respondents by: M/s Khan Imtiaz AliKhan, Naila Riaz and M.Mushtaq
Ahmad, Advocates.
Mr. Waqar Ahmad Chaudhry, Assistant Advocate
General, Punjab.
Munir Ahmad ASI.
ABDUS SATTAR ASGHAR, J:- Petitioner has invoked
the constitutional jurisdiction of this Court under Article 199 of the
Constitution of Islamic Republic of Pakistan, 1973 read with Section
561-A Cr.P.C. seeking quashing of proceedings in case FIR
No.510/2007 dated 23.10.2007 in the offence u/s 382 PPC registered
at Police Station City Arifwala District Pakpattan Sharif pending in
the Court of learned Judicial Magistrate Section 30 Arifwala.
2.
Succinctly facts leading to this petition are that the above
referred FIR No.510/2007 was registered on the application of Javed
Iqbal/respondent No.1 (the complainant) against the petitioner. In the
said FIR attribution against the petitioner is that on 10.4.2007 at about
11:30 p.m. the petitioner armed with pistol along with Mst. Sabina
Yasmin, Mst. Shabana Naureen, Muhammad Nasir and Sultan
Mehmood came to his house; that the petitioner pointing his pistol
towards the complainant directed the inmates of the house to remain
silent and caused threat of life and thereafter asked his co-accused to
search the house; that the accused took away cash of Rs.52,000/-, gold
ornaments, video camera, 50 British Pounds, mobile phone, identify
card, passports of the complainant, his wife and the children; that the
WP-4589/2012
(2)
petitioner on gun point boarded the complainant in vehicle No.LRD5394 and took him to Multan and detained him in the premises of
Police Station FIA and falsely implicated him in case FIR
No.133/2007 in the offences u/s 467, 468, 472, 473 PPC and Sections
17, 18, 22 of Emigration Ordinance 1979.
3.
In the police investigation petitioner was found not guilty
and cancellation report of the FIR was submitted by the police before
the learned Ilaqa Magistrate which was not acceded to and
consequently police submitted the challan under Section 173 Cr.P.C.
before the learned Ilaqa Magistrate. Soon after submission of the
challan petitioner lodged an application under Section 249-A Cr.P.C.
before the learned Judicial Magistrate Section-30 Arifwala on the
ground that he is serving as Inspector in the FIA and the raid was
conducted by him on the order of his high-ups; that he rightly arrested
Javed Iqbal/respondent No.1 and registered case FIR No.133/2007
against him which is sub-judice in the Court of learned Special Judge
Central Multan; that Javed Iqbal/respondent No.1 (the complainant)
has got registered the false case FIR No.510/2007 against the
petitioner as a counterblast therefore he be acquitted from this case.
Keeping in view the pendency of the trial of case FIR No.133/2007
before the learned Special Judge Central Multan, the learned
Magistrate Section-30 Arifwala vide order dated 28.1.2011 stopped
the proceedings in terms of Section 249 Cr.P.C. of case FIR
No.510/2007 to avoid conflicting judgments. Javed Iqbal/respondent
No.1 (the complainant) being dissatisfied of the order dated 28.1.2011
passed by learned Judicial Magistrate Section-30 assailed it through a
revision petition before learned Additional Sessions Judge Arifwala
which was allowed vide order dated 16.9.2011 setting aside the order
of learned Magistrate Section-30. Petitioner being aggrieved thereof
has lodged this constitutional petition under Article 199 of the
Constitution of Islamic Republic of Pakistan, 1973 read with Section
561-A Cr.P.C.
4.
It is vehemently argued by learned counsel for the
petitioner that learned Judicial Magistrate Section-30 Arifwala lacks
WP-4589/2012
(3)
jurisdiction to try the case FIR No.510/2007 as the earlier FIR
No.133/2007
lodged
against
Javed
Iqbal/respondent
No.1
(complainant) pertaining to the same occurrence was pending before
the learned Special Judge Central Multan; that the attributions alleged
by Javed Iqbal complainant in FIR No.510/2007 could have been at
the most his defence in the earlier case FIR No.133/2007 which was
pending trial against him before the Special Judge Central Multan;
that the proceedings in the case before the learned Judicial Magistrate
therefore are illegal, without jurisdiction and liable to be quashed.
5.
It
is
resisted
by
learned
counsel
for
Javed
Iqbal/respondent No.1 with the contentions that he has been acquitted
of the charge in case FIR No.133/2007 by the learned Special Judge
Central Multan vide order dated 9.4.2014. He added that the
occurrence alleged against him in case FIR No.133/2007 is altogether
distinct and different; that the occurrence alleged by respondent No.1
as complainant of case FIR No.510/2007 with attribution against the
petitioner and his co-accused attracting the offence u/s 382 PPC is
exclusively triable by the learned Magistrate Section-30; that the
learned Additional Sessions Judge vide order dated 16.9.2011 has
rightly set aside the order of learned Magistrate regarding stay of
proceedings; that the order dated 16.9.2011 passed by learned
Additional Sessions Judge in exercise of revisional jurisdiction does
not suffer from any legal infirmity or jurisdictional error therefore
petitioner has no case to invoke the constitutional jurisdiction under
Article 199 of the Constitution of Islamic Republic of Pakistan, 1973
or inherent jurisdiction of this Court under Section 561-A of the
Cr.P.C.
6.
Arguments heard. Record perused.
7.
Prosecution case in FIR No.133/2007 Police Station
FIA/CC Circle Multan lodged on 10.4.2007 on the application of Mst.
Shabana Naureen was that she lodged an application to the Deputy
Director FIA Multan on 10.4.2007 alleging that Javed Iqbal/
respondent No.1 along with one Usama Zubair Tahir have extorted a
WP-4589/2012
(4)
sum of Rs.4,00,000/- including passport and identity card from the
complainant’s brother with a promise to send him to London
whereupon petitioner as Inspector FIA conducted a raid at Qayyum
Seed Corporation where Javed Iqbal having sight of the raiding party
boarding into his Cultus Car No.SWL-3366 decamped who was
chased and apprehended at Lorry Adda Burewala Road; that raiding
party conducted search of the car and recovered fake stamps of
Emigration as well as of National Bank of Pakistan and other
documents from a bag which were taken into possession through
recovery memo.
8.
Contrary to the above Javed Iqbal complainant of case
FIR No.510/2007 alleged that petitioner along with co-accused Mst.
Shabana Naureen and others on 10.4.2007 at about 11:30 p.m.
trespassed into his house and on gun point looted the cash amount,
gold ornaments and other valuables; that they boarded the
complainant in vehicle No.LRD-5394 and took him to Multan and
falsely registered the case FIR No.133/2007 against him.
9.
Bare reading of both the FIRs therefore makes it crystal
clear that place of occurrence in both the FIRs is different. Offences in
both the cases are also distinct and distinguishable. Contents of FIR
No.510/2007 prima facie make out penal offence under Section 382
PPC exclusively triable by the learned Magistrate whereas offences
under Sections 467, 468, 472, 473 PPC and Sections 17, 18, 22 of
Emigration Ordinance 1979 pertaining to case FIR No.133/2007 were
different and exclusively triable by the learned Special Judge Central
wherein Javed Iqbal/respondent No.1 has been acquitted of the
charge. In view of above the plea of the petitioner that the learned
Magistrate lacks jurisdiction to try the offence u/s 382 PPC in case
FIR No.510/2007 is devoid of any force and thus repelled.
10.
Besides it is pertinent to mention that validity of the
order of learned trial Magistrate was examined on judicial touchstone
by the learned Additional Sessions Judge Arifwala in exercise of his
revisional jurisdiction therefore in the absence of any legal infirmity
WP-4589/2012
(5)
or jurisdictional error in the impugned order passed by learned
Additional Sessions Judge Arifwala writ petition under Article 199 of
the Constitution of Islamic Republic of Pakistan, 1973 is not
maintainable against a revisional order passed by a court of competent
jurisdiction. Reliance is made upon: (i) Badaruddin vs. Mehr
Ahmad Raza, Additional Sessions Judge Jhang and 6 others (PLD
1993 SC 399) (ii) Muhammad Fiaz Khan vs. Ajmer Khan and
another (2010 SCMR 105).
11.
There is no cavil to the proposition that under Section
561-A Cr.P.C. High Court has got inherent power to quash the
criminal proceedings if it is satisfied that a false case has been brought
with mala-fide intention and the process of the court is being abused
not to advance the cause of justice but to subject the adversary to
unnecessary harassment. In the instant case attributions against the
petitioner and his co-accused prima facie make out a cognizable
offence under Section 382 PPC which is exclusively triable by the
ordinary court of learned Magistrate. Plea of malice or harassment is
not substantiated through any speck of material. I do not find any
legal infirmity or jurisdictional error in the impugned order dated
16.9.2011 passed by learned Additional Sessions Judge Arifwala.
Therefore petitioner has no case to invoke the constitutional
jurisdiction of this Court under Article 199 of the Constitution of
Islamic Republic of Pakistan, 1973 or under inherent jurisdiction of
this Court under Section 561-A Cr.P.C. Reliance is made upon: (i)
Ghulam Muhammad vs. Muzammil Khan and four others (PLD
1967 SC 317) (ii) Bashir Ahmad vs. Zafar-ul-Islam (PLD 2004 SC
298).
12.
For the above reasons this petition having no merit is
dismissed.
(ABDUS SATTAR ASGHAR)
JUDGE
Approved for reporting
JUDGE
SN

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