Col. SHAH SADIQ vs MUHAMMAD ASHIQ and otherss

' CH. IJAZ AHMAD, J.--- The brief facts out of which the present petition arises are that the private respondents were involved in a case F.I.R. No,1117 of 2004 dated 22-10-2004 registered under sections 420, 468, 471 of P.P.C. At Police Station North Cantt., Lahore on the complaint of petitioner alleging that the respondents had submitted documents for registration of sale-deed Nos.6217 pertaining to 16 Kanals, 12 Marlas, sale-deed No,6218 pertaining to 40 Kanals and sale-deed No,6219 also pertaining to 40 Kanals, all dated 23-7-2004 in respect of pieces of land situated in Village Chak Dheer Tehsil Cantt. District Lahore on the basis of Farad Malkeet Jama Bandi relating to the said land which had not been issued or signed by the Patwari Halqa Dheer and as such the same had been forged and that the land intended to be sold out through the said sale-deeds was under litigation in a Civil Court. Respondents Nos.1 to 3 being aggrieved filed Constitutional Petition No,2778 of 2005 before the learned High Court with the prayer for quashment of F.I.R. In question which was accepted vide judgment, dated 11-4-2005. Hence, the present petition.

2. Learned counsel for the petitioner submits that the Revenue Officer passed the order dated 11-10- 2004 against the respondents for registration of case. Respondents submitted an application for recalling the said order before the District Revenue Officer (Registration), Lahore Cantt., who suspended the order dated 10-2-2004 till the findings of fresh inquiry vide order, dated 2-2-2005.

He further urges that the petitioner had raised various preliminary objections in the written statement before the learned High Court qua the maintainability of the constitutional petition. The learned High Court accepted the constitutional petition vide impugned judgment by quashing the impugned F.I.R. Without adverting to the preliminary objections raised by him in the written statement. He further submits that the learned High Court had quashed the F.I.R. In question notwithstanding the fact that the investigation was at initial stages.

3. Learned counsel for the respondents Nos.1 and 2 submits that respondents did not commit any offence as they had purchased the property in question long ago. He further submits that land in question was sold by Abdul Ghafoor having power of attorney of the original owner in the year 1965 who had sold the same to another person whereas the respondents were the 3rd purchasers, therefore, ingredients of offences of sections 420, 468, 471 of P.P.C. Are not attracted.

4. Dr. Khalid Ranjha learned counsel for the respondent No,3 submits that name of respondent No,3 was not mentioned in the contents of the impugned F.I.R. He further submits that petitioner secured ex parte order from the Revenue Officer on 11-10-2004 qua the land in question which was suspended on the application of the respondents by the Deputy District Officer till the findings of fresh inquiry vide order, dated 2-2-2005. Respondents submitted application before respondent No,4, S.H.O. For quashment of the F.I.R. As no offence was made out and there was no occasion to conduct the investigation after suspension of the order by the Sub-Registrar. Respondent No,4, S.H.O. Insisted that he had registered the case on the direction of some superior officer, therefore, it was not possible for him to cancel the F.I.R. The respondents in such circumstances had no other alternative remedy except invoking the extraordinary jurisdiction of the Lahore High Court by filing a constitutional petition for quashment of F.I.R. In question. He further urges that civil suits qua the land in question are pending adjudication before the competent Court, therefore, learned High Court was justified to exercise extraordinary jurisdiction in favor of the respondents. He further submits that the complainant after a slumber of over 40 years has challenged the disputed property. The petitioner/ complainant had no explanation qua not agitating the matter before any forum for such long time. He further urges that ingredients of section 420 of P.P.C. Are not attracted in the present case, therefore, learned High Court was justified after perusing documents of both the sides and had given finding of fact against the petitioner that offence under section 420 of P.P.C. Had not made out in the circumstances.

5. We have given our due consideration and perused the record ourselves. It is better and appropriate to reproduce the basic facts in chronological order to resolve the controversy between the parties:

(i) Petitioner submitted application before the Deputy District Officer (Registration) Lahore Cantt.

Who passed the order dated 11-10-2004 on the complaint of petitioner in the following terms: "From the drawback of the case I have come to the conclusion that the sellers, purchasers have played fraud not with this office only but also with D.H.A. Local Commission is also responsible for negligence in such a position a case is required to be registered against the following persons:--

(1) Mr. Muhammad Ashiq s/o Ali Muhammad, Resident of House No,4, Street 9, Muhallah Faiz Bukhsh Baghbanpura.

(2) Mr. Muhammad Ashraf son of Ali Muhammad Resident of House No,4, Street 9, Muhallah Faiz Bukhsh Baghbanpura.

The case for negligence against the Local Commission will be moved to the Lahore Bar Council separately".

(ii) Deputy District Officer (Registration) intimated the S.H.O. Concerned vide letter, dated 20-10- 2004 in terms of order, dated 11-10-2004.

(iii) Impugned F.I.R. Was registered on 22-10-2004.

(iv) Respondent approached Deputy District Officer with the prayer for recalling order, dated 11-10- 2004 till the findings of the fresh inquiry vide order, dated 2-2-2005.

(v) Respondents submitted application to the S.H.O. Concerned for quashment of the F.I.R.

(vi) Civil suits are pending adjudication before the competent Civil Court.

6. In case the contents of the writ petition and parawise comments along with the aforesaid facts mentioned in chronological order are put in juxtaposition then it brings the case of respondents Nos.1 to 3 in the area of disputed questions of fact. It is a settled proposition of law that High Court has no jurisdiction to resolve the disputed question of fact in constitutional jurisdiction as the law laid down by this Court in the following judgments:--

(i) Muhammad Saeed Azhar v. Martial Law Administrator Punjab and others 1979 SCM R 484; (ii)

Umar Hayat Khan v. Inayatullah Butt and others 1994 SCM R 572; (iii) Mst. Kaniz Fatima through Legal Heirs v. Muhammad Salim 2001 SCM R 1493; (iv) Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Division Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415; (v) Wazir Ali Soomro v, Water and Power Development Authority and others 2005 SCM R 37.

7. It is also a settled proposition of law that if prima facie an offence has been committed, ordinary course of trial before the Court should not be allowed to be deflected by resorting to constitutional jurisdiction of High Court. By accepting the constitutional petition the High Court erred in law to short circuit the normal procedure of law as provided under Cr.P.C. And police rules while exercising equitable jurisdiction which is not in consonance with the law laid down by this Court in A. Habib Ahmad v. M.K.G. Scott Christian PLD 1992 SC 353. The learned High Court had quashed the F.I.R. In such a manner as if the respondent had filed an appeal before the High Court against order passed by trial Court. The learned High Court had no jurisdiction to quash the impugned F.I.R. By appreciation of the documents produced by the parties without providing chance to cross- examine or confronting the documents in question. Respondents had alternative remedy to raise objection at the time of framing the charge against them by the trial Court or at the time of final disposal of the trial after recording the evidence. Even otherwise, respondents have more than one alternative remedies before the trial Court under the Cr.P.C. i,e, section 265-K, 249-A or to approach the concerned Magistrate for cancellation of the case under provisions of Cr.P.C. The respondents have following alternative remedies under Cr.P.C.:--

(a) To appear before the Investigating Officer to prove their innocence.

(b) To approach the competent higher authorities of the Investigating Officer having powers vide section 551 of Cr.P.C.

(c) After completion of the investigation, the Investigating Officer has to submit case to the concerned Magistrate and the Magistrate concerned has power to discharge them under section 63 of the Cr.P.C. In case of their innocence.

(d) In case he finds the respondents innocent, he would refuse to take cognizance of the matter.

(e) Rule 24.7 of the Police Rules of 1934 makes a provision for cancellation of cases during the course of investigation under the orders of the concerned Magistrate.

(t) There are then remedies which are available to accused persons who claim to be innocent and who can seek relief without going through the entire length of investigations.

8. The learned High Court erred in law in accepting constitutional petition by quashing the F.I.R. At the initial stage which was not in consonance with the law laid down by this Court in the following judgments:--

(i) Ghulam Muhammad v. Muzammal Khan and 3 others PLD 1967 SC 317; (ii) Mohsin Ali and another v. The State 1992 SCMR 229; (iii) Abdul Rehman v. Muhammad Hayat Khan and others 1980 SCM R 311; (iv) Marghoob Alam and another v. Shamas Din and another 1986 SCM R 303; (v) Sheikh Muhammad Yameen v.

The State 1973 SCM R 622; (vi) Bashir Ahmad v. Zafar-ul-Islaam and others PLD 2004 SC 298; (vii) Kh.

Nazir Ahmad's case AIR 1945 PC p.18; (viii) Shahnaz Begum v. The Honourable Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677; (ix) Brig. (Retd.) Imtiaz Ahmad v.

Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCM R 2142.

9. According to provisions of Cr.P.C. It is for the Investigating Officer to collect all the facts connected with the commission of offence and if he finds that no offence is committed, he may submit a report under section 173, Cr.P.C. To the Allaqa Magistrate. On the other hand, if on the basis of his investigation he is of the opinion that the offence has in fact been committed, he has to submit report accordingly. However, the report of the Investigating Officer cannot be the evidence in the case. The investigation is held with a view to ascertaining whether or not an offence has been committed. The inquiry, or trial, as the case may be has to be conducted by the Magistrate. If the police is restrained from investigating the matter, their statutory duty, it will in our opinion be tantamount to acting against the law as held in Kh. Nazir Ahmad's case AIR 1945 PC. p.18. The relevant observation is as follows:-- "Just as it is essential that everyone accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in the matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police under sections 154 and 156 to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court under section 561-A. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always of course, subject to the right of the Court to intervene in an appropriate case when moved under section 491, Criminal Procedure Code, to give direction in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it and not until then."##TE#

10. This Court has reconsidered and approved the aforesaid judgment in Shahnaz Begum's case PLD 1971 SC 677 and again reconsidered and approved in Brig. Imtiaz's case 1994 SCM R 2142.

11. The question of law has also been considered by this Court in Kh. Fazal Karim's case PLD 1976 SC 461 and laid down the following principle:-- ' "It is well-settled that the inherent jurisdiction of the High Court under section 561-A, Cr.P.C. Is neither alternative nor additional in its character and is to be rarely invoked only in the interest of justice so as to seek redress of grievances for which no other procedure is available and that the provision should not be used to abstract or divert the ordinary course of criminal procedure.

Reference may be made in this regard to this Court's judgment in Ghulam Muhammad PLD 1967 SC

317. The same view was reiterated by this Court in Shahnaz Begum's case PLD 1971 SC 677. It was observed in the case of Ghulam Muhammad. Muzammal Khan. This Court had occasion to point out that the power given by section 561-A, Cr.P.C. Can certainly not be utilized as to interpret or divert the ordinary course of criminal procedure as laid down in procedural statute."

12. The contention of the learned counsel for the respondent that the dispute between the parties is of civil nature has no force in view of law laid down by this Court in Ahmad Saeed v. The State and another 1996 SCM R 186.##TE#

13. It is pertinent to mention here that the learned High Court observed in the impugned judgment in para. 6 in the following terms:-- "the factum as to who had placed the said Farad Malkeet on the file is still under inquiry by virtue of order, dated 2-2-2005 (Annexure "M)."

14. According to the scheme prescribed by the Cr.P.C., the determination of guilt or innocence of an offender is a serious business which commences with a pre-trial exercise to be judicially carried out by a competent Magistrate under section 190 of the Cr.P.C. If these allegations levelled and the 'evidence collected are found worth a trial, then cognizance is taken of the case and the offender is summoned for the trial. Subsequently, Chapters XX and XXII-A prescribe mode of inquiry as also held by this Court in the following judgments:--

(1) Bashir Ahmad v. Zafar-ul-Islaam and others PLD 2004 SC 298 and (2) Bahadur and another v.

The State and another PLD 1985 SC 62.

15. We have examined the case from all angles and are of the view that learned High Court erred in law to quash the F.hR. In question as we do not find any extra circumstances in the present case on the basis of which learned High Court had exercised discretion in favor of respondents. It is the duty of the Investigating Agency not only to investigate the matter in a manner to connect the accused with the commission of offence but also to investigate the matter in such a manner so as to save the innocent persons from the agony of endless investigation and trial.

16. It is a settled proposition of law that when there are extraordinary circumstances, High Court is duty bound to protect life, liberty, honour and dignity of every citizen. It must, therefore, take extraordinary measures especially when the statute law is not sufficient to meet a situation and provide protection to the citizens. It is here that the extraordinary jurisdiction under Article 199 of the Constitution must come to the aid of citizens.

17. In the present case, we do not find any extraordinary circumstances on the basis of which the learned High Court had exercised extraordinary jurisdiction.

18. No doubt, exercise of the jurisdiction under Article 199 of the Constitution is discretionary with the High Court but according to the principle laid down by the superior Courts, the discretionary powers must be exercised in good faith, fairly, justly and reasonably having regard to all relevant circumstances. Examining the case of the petitioner J in the light of above principles, we are of the considered opinion that the High Court had not only exercised its jurisdiction improperly but also scrutinized the documents which were not proved and allowed the petitioner to rebut the same in terms of the provisions of Qanun-e-Shahadat Order, 1984.

19. The scheme of our Constitution is based on trichotomy as is held by the Supreme Court in Zia- ur-Rehman's case PLD 1973 SC 49 and this judgment was reconsidered and approved by the Full Bench of this Court in Mian Nawaz Sharif's case PLD 1973 SC 473. In the system of trichotomy, the judiciary has the right to interpret, the Legislator has right only to legislate and executive has to implement. The trichotomy of powers which is already delicately balanced in the Constitution, cannot be disturbed as it grants powers to each organ to decide the matters in its1K allotted sphere.

20. It is pertinent to mention here that established practice before the creation of country was that learned High Courts were very reluctant to quash the proceedings under constitutional jurisdiction.

The object and reason behind this practice was that the High Courts had to quash the proceedings summarily which would create chaos due to the following reasons:--

(I) All the procedure and authorities prescribed under Cr.P.C would become redundant.

(II) To interfere in the sphere allotted to the executive organ.

(iii) There is every like hood of injustice in a summary disposal.

(iv) The cases are quashed at initial stages then it would create law and order situation as the people may resort to taking revenage from opposite party.

(v) Deviation from the past practice is always dangerous.

(vi) Superior Courts always keep judicial restraint in view of Article 4 of the Constitution real with Article 5(2) of the Constitution.

21. In view of what has been discussed above, the impugned judgment of the learned High Court is not sustainable in the eyes of law and is not in consonance with the law laid down by this Court in the aforesaid judgments, therefore, petition is converted into appeal which is allowed. The impugned judgment of the High Court is set aside. Let a.' copy of this order be sent to the S.H.O.

Concerned who shall proceed in the matter in accordance with law.