Mehboob Ali vs The State

ORDER

MUHAMMAD IJAZ KHAN, J. Through the instant writ petition, the petitioner has prayed as under: "It is therefore, most humbly prayed that on acceptance of the instant petition, the FIR No. 195 dated 11.02.2022 under sections 420/467/468 /471 PPC PS Charbagh, District Swat lodged against the petitioner , be quashed and the impugned order dated 04.02.2022 in case No. 22-A Petition No. 10/ 04 of 2022, passed by ASJ-III/IZQ, Swat be set aside."

2. Precisely the case of the petitioner is that respondent No. 4 namely Afzal Khan filed an application under section 22-A Cr. PC for registration of an FIR against the present petitioner before the Justice of Peace, who vide order dated 04.02.2022 allowed the application and on the basis of aforesaid order , the local police of Police Station Charbagh District Swat has registered an FIR No. 195 dated 11.02.2022 under sections 420/467/468/471 PPC at Police Station Charbagh, District Swat.

3. After registration of the aforesaid FIR against the petitioner , he has approached this Court for quashment of the aforesaid FIR.

4. Learned counsel for the petitioner submitted during the course of his arguments that neither any notice of the application under section 22-A Cr. PC has been issued to the petitioner nor any opportunity of hearing has been given to him by the learned Justice of Peace and therefore the impugned order through which the instant FIR has been registered against the petitioner is illegal and without lawful authority .

5. We have heard arguments of learned counsel for the petitioner and perused the record.

6. It appears from the record that petitioner has shown an unnecessary haste in approaching this Court as the instant FIR was registered just days before the filing of the instant petition and the Investigating Officer has yet to investigate the allegations made in the FIR and thereafter , on the basis of material collected by him, he has yet to form an opinion regarding the truthfulness or otherwise of the allegations made in the FIR.

7. It is to be noted that under the Criminal Procedure Code, 1898, a complete mechanism has been provided for the investigation of an FIR, qua the correctness or otherwise of the allegations made in the FIR as well as the domain and power of the Investigating Officer either to conclude and opined that the allegations made in the FIR are prima facie correct as per his inves tigation or that the same are false and as such he may again either discharge the accused under section 169 Cr. PC even at the investigation stage or send the challan under section 173 Cr. PC to the Court for the trial of the accused. It is also to be noted that if even the investigation goes against an accused person and the challan is put in Court for his trial, he may at the commencement of the trial at any stage of the proceedings can file an application under section 249-A Cr. PC or 265-K Cr. PC as the case may be, before the learned trial Court for his acquittal if the materials available on file do not connect him with the commission of the of fence.

8. Be that as it may, we believe that registration of the FIR has to pass multiple phases of investigation, where the authenticity of the allegation or the innocence of the accused or any malafide on the part of complainant could be checked by the Investigating Officer and as such it would be too pre-mature to quash an FIR soon after its registration while exercising our jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

9. There is no cavil with the established principle that this Court can quash an FIR provided that if on the face of record, there is question of jurisdictional defect or legal authority of the person who is registering the FIR, or where there is some grave violation of the law e.g. if the law requires that the Court would take cognizance of an offence upon the complaint but an FIR has registered or where if the allegations made in the FIR, even if believe, the same would not constitute an offence, however during the course of his arguments petitioner could not bring his case within the aforesaid parameter to warrant our interference.

10. It is to be noted that petitioner has also invoked the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for the quashment of the FIR. As to whether the allegations made in the FIR are true or not or as to whether the FIR has been registered with ill-will and malafide and such like other disputed questions of fact cannot be resolved by this Court in its writ jurisdiction. So on this score alone, the petitioner could not maintain the instant petition.

11. Even otherwise, quashment of an FIR at such an initial stage of investigation would amount to deflect the ordinary course of investigation as well as proceedings if any, before the trial Court. It is by now a settled law that the High Court could neither act as investigator nor could control the investigation or any proceedings pending before a competent Court of law. The Hon'ble Supreme Court of Pakistan in the case of Dr. Ghulam Mustafa vs. The State and others reported as 2008 SCMR 76 , has held in para-6:- "It is a settled law that our constitutio n is based on trichotomy . The Courts have right to interpret the law and the High Court had no jurisdiction whatsoever to take the role of the investigating agency ."

Further ahead in the said judgment, it was also held: "By accepting the constitutional petition the learned High Court erred in law to short circuit the normal procedure of law as provided by law while exercising equitable jurisdiction which is not in consonance with the law laid down by this Court in various pronouncements."

Similarly , in the case of Dr. Sikandar Ali Mohi-ud-din vs. Statio n House Officer and others reported as 2021 SCMR 1486 , it was held: "The Superior Court of the country while dealing with such like matter had already given finding that if prima facie an offence has been committed, ordinary course of trial before the Court should not be allowed to be defeated by resorting to constitutional jurisdiction of High Court. By accepting the constitutional petition the High Court erred in law, otherwise the Single Bench has not assigned any justifiable reason while accepting the said petition."

12. In the case of Shahnaz Begum vs. The Hon'ble Judges of the High Court of Sind and Baluchistan reported as PLD 1971 Supreme Court 677, Hon'ble Apex Court has held that the High Court in exercise of its constitutional jurisdiction should not interfere in police investigation. Relevant findings given in said judgment are reproduced below:- "So far as the Constitution of 1962 is concerned the powers of the High Courts are such as have been described under the provisions of Article 98 of the Constitution. They are those which have been conferred on them by the Constitution itself or by any law and apart from them they have no other powers, because, Article 130 of the same Constitution provided that "no Court shall have any jurisdiction that is not conferred on it by this Constitution or by or under the law." Under this Constitution, a High Court has been given the power of judicial review of executive actions by Article 98 in certain specified circumstances but even in such a case the High Court cannot move suo motu for, it is specifical ly provided in each of the sub clauses (a), (b) and (c) of clause (2) of Article 98 that only "on the applicatio n of an aggrieved party or of any person," the High Court may make the orders or issue the directions therein specified. It is clear , therefore, that under Article 98, there is no scope for any suo motu action by the High Court. The High Court has also no power of supervision or control over investigating agencies for the power of superintendence which is given by Article 102 of the Constitution is only in respect of "all other Courts that are subordinate to it." This position, as already , pointed out, is not also disputed by the learned Advocate- General for the Province of Sind."

Wisdom in this regard can also be draw n from judgments reported as 1994 SCMR 2142 , 2010 SCMR 624 and 2016 SCMR 447 .

13. For what has been discussed above, the instant writ petition is devoid of any merit, hence the same is accordingly dismissed in limine.