' This matter pertains to Circuit Court, Hyderabad where the petition was filed, for the following reliefs:-- "(a) Order for quashment of F.I.R. No.83 of 1993, registered at Police Station B-Section, Latifabad, Hyderabad under sections 406, 420, 506(b) and 34, P.P.C. Against the petitioners Nos.1 and 2.
(b) Any other relief which this Honourable Court deems fit and proper in the interest of justice."
2. The background of the case, as disclosed in the petition, is that the F.I.R. No.83 of 1993 was lodged at Police Station B-Section; Latifabad, Hyderabad on 24-10-1993 by Mishraz Ahmed Siddiqui, respondent- No. -1 for offences punishable under sections 406, 420, 506(b) and 34, P.P.C. Alleging therein that owing to a dispute arising out of money matter the petitioners namely, Ghulam Muhammad and his brother-in-law Abdul Razzak issued threats to said complainant to kill him and also to set ablaze his house. Ghulam Muhammad, petitioner No.1 was arrested, but then released on bail, while Abdul Razzak, petitioner No.2 obtained pre-arrest bail. The matter then went to cold storage. After sometime, the petitioners contacted the respondent No.1, who expressed that he was not interested in the case. The petitioner No.2, however, filed a recovery suit in the Civil Court, but later on under the advice of petitioner. No.1 and his family members did not pursue the same: On the other hand, the police also did not care to submit any charge-sheet in the Court. The petitioners ultimately filed the above said Constitutional petition for quashment of titled F . I. R .
3. The matter came up before a Division Bench of this Court where it was heard at Katcha Peshi level and a difference of opinion cropped up about maintainability of the petition. My learned brother Muhammad Roshan Essani, J., as he then was, took the view that quashment of F.I.R. Was tantamount to throttling the investigation and with the following observations dismissed the petition in limine:-- "The investigation starts after the registration of F.I.R. The quashment of F.I.R. Tantamounts to throttling the investigation. It is well-settled that this Court cannot interfere in the investigation. In this context reference can be made to the case of Shahnaz Begum v. Hon'ble Judges of the High Court of Sindh and Balochistan (PLD 1971 SC 677), Wali Muhammad v Haq Nawaz (1971 SCM R 717), Imtiaz Ahmad v. Government of Pakistan (1994 SCM R 2142), Ahmad Saleem v. Muhammad Amin (1998 PCr.LJ 170) and Shaukat Ali Dogar v. Ghulam Qasim (PLD 1994 SC 281)."
4. Learned second member of the Bench Amir Hani Muslim, J., disagreeing with the above view observed that the cited authorities were distinguishable and held that the petition may be admitted to regular hearing. He concluded as under:-- "In the present proceedings though a prayer for quashment of F.I.R. Has been made but this Court in exercise of its jurisdiction can mould the relief in order to meet the ends of justice and a direction can be issued to investigating agency either to send up the petitioners for trial before the competent Court of jurisdiction or to submit a report under section 169, Cr.P.C. As provided under Chapter XIV of the Criminal Procedure Code. Admittedly, the petitioners have no remedy in law inasmuch as the challan has not been submitted by the Investigating Officer to the competent Court of law and therefore, the petitioners cannot approach any Court under sections 249 and or 561-A, Cr.P.C. Therefore, this petition is competent. The cases referred to in the order of the Honourable Judge are distinguishable on facts and have no application to the present proceedings on facts. The grounds raised in these proceedings require consideration. Resultantly, I admit this petition to regular hearing and order notice to the respondents as well as to the Additional A.-G."
5. The matter was referred to me. Upon notice, Mr. Umer Din Qureshi, learned counsel for petitioners; Mr. Abdul Waheed Qureshi, learned counsel for respondent No.1; and Mr. Sarwar Khan, learned Additional Advocate-General, Sindh for State appeared and addressed the Court.
6. Mr. Umer Din Qureshi submitted that he would not press the petition, since the criminal case had been disposed of as N.C. Class and such report was submitted in the concerned Court. In this view of the matter it was ordered that the petition may be placed before a Division Bench for disposal since it was not being pressed. When the matter came before Hon'ble Chief Justice for the purpose of administrative approval he made a query in following terms:- "Whether the petition can be allowed to be withdrawn or dismissed as not pressed after it had been referred to a learned third Judge for resolving the issue on account of difference of opinion between the two learned Judges."
7. Consequently, the matter has now been placed before me. Notices were again issued to the parties. Mr. Umer Din Qureshi appeared for the petitioners and Mr. Sarwar Khan, learned Additional Advocate-General for State. None appeared for respondents.
8. Mr. Umer Din Qureshi, learned counsel for petitioners pointed out that new developments have taken place in the matter. He stated that the learned Magistrate has taken cognizance of the offence and petitioners have challenged the same in the High Court at Hyderabad, but because of the instant petition the hearing of the subsequent petition is delayed. Mr. Sarwar Khan, learned Addl. Advocate-General submitted that in the changed circumstances the very foundation of the cause of action for the purpose of this petition ceases to exist. I agree with them to the extent that the controversy in the matter now to be examined in the light of the recent developments and in that context the parties have already approached the High Court, Circuit Court at Hyderabad Precisely, the short and logical answer to the query made by the Hon'ble Chief Justice, as has been reproduced at para.6 above, could be that the instant petition has lost its purpose and its dismissal plainly on the aforesaid score or by way of withdrawal, would be justified, but since the petition is not available for adjudication, herein, and its subject-matter is also not under consideration, no definite conclusion can be drawn by me at this stage.
9. However, by way of subjective approach I would record my view on the original reference arising out of difference of opinion between the Hon'ble Judges.
10. My learned brother Muhammad Roshan Essani, J. Has taken the view that the petition for quashment of F.I.R. Was misconceived, and he has relied on the principles laid down in Shahnaz Begum's case (PLD 1971 SC 677) and the subsequent authorities Wali Muhammad v. Haq Nawaz (1971 SCM R 717), Imtiaz Ahmad v. Government of Pakistan (1994 SCM R 2142), Ahmad Saleem v.
Muhammad Amin (1998 PCr.LJ 170) and Shaukat Ali Dogar v. Ghulam Qasim (PLD 1994 SC 281).
Contrary view taken by my learned brother Amir Hani Muslim, J. In the context of Anwar Ahmed's case (1996 SCM R 24), was that an appropriate direction could be issued to investigating agency in exercise of Constitutional jurisdiction since no remedy was available to the petitioners under the Code of Criminal Procedure. On a careful understanding of both these views, it seems that dismissal of petition in limine has been ordered strictly keeping in mind the prayer clause (a) wherein the petitioners have sought quashment of the F.I.R.
11. In Shahnaz case (supra) the point examined, inter alia, was, as to whether the High Court could direct preliminary investigation or trial of any criminal case by any officer or Court otherwise competent to investigate or try it, though such case belonged in ordinary course to the jurisdiction of some other officer or Court. Dilating upon the ambient circumstances in the case it was observed that exercise of such power would be Unwarranted interference in the investigation and that the High Court had no power to interfere with investigation by police into criminal offences.
12. In Ghulam Muhammad v. Muhammad Khan (PLD 1967 SC 317), it was, however, observed that the power of judicial review of executive's actions was available under Article 98 of the 1962 Constitution, but the High Court had no power to take suo motu action. The most important observation in the cited case, which is relevant for the purpose of this petition, was that the necessity of making a direction to investigating agency could only arise in a case where no investigation had started. In the instant case, the grievance of the petitioners was that after recording, of the F.I.R. The police had remained wholly inert and indifferent and had taken no step towards investigation which would, therefore, lead to the normal conclusion that the investigation had not even taken its start. I am, therefore, of humble view that these observations, in essence, support the case of petitioners more particularly,. When they adopted the course of approaching the High Court in its Constitutional jurisdiction in a way, for judicial review within the meaning of Article 199 of the Constitution.
13. In Wali Muhammad's case (supra) the High Court of West Pakistan Lahore had taken up the matter and in consequence of an interim order passed by the High Court, the investigation was transferred from one hand to another. The interim order was, therefore, set aside by the Hon'ble Supreme Court. In the present petition the circumstances were different. The petitioners' grievance, basically was that there was no investigation at all and it was for this reason that he had, in the first instance, prayed for quashment of the F.I.R. Itself. The question of quashment of F.I.R. Will be dealt with later on, but at least the miserable state of investigation could be taken note of by the High Court in exercise of its powers under Article 199 of the Constitution, particularly, when the statutory position has now changed and under section 173, Cr.P.C. The police is bound to furnish a report/charge-sheet within a limited period of 17 days. At least on this score alone there was no reason to dismiss the Constitutional petition in limine.
14. As regards, Imtiaz Ahmed's case (supra), it was based on distinguished circumstances, wherein, inter alia, it was held by the Hon'ble Supreme Court that the High Court could not assume the role of investigator and that continued control over the investigation exercised by the Court was prejudicial to the accused and detrimental to the fairness of the procedure apart from being without jurisdiction. Certainly, within the realm of the circumstances of this case it cannot be presumed that the petitioners sought control over the investigation because, as already discussed, there was no investigation at all, which was by itself a serious drawback and gross irregularity.
Essentially, it was an illegal act on the part of investigating agency to overlook the process of laws and abandon the investigation.
15. The principles laid down in these authorities`were taken into consideration in Shoukat Ali Dogar's case (supra) and it was observed that the High Court was not required to conduct a preliminary inquiry as to conduct and manner of the investigation of police. In the present case, however, the main object of the petition was not to hold an enquiry or cause any interference in investigation.
16. As far quashment of F.I.R. Is concerned, it is not the spirit of law to quash an F.I.R. In every case on minor grounds, but however, rule in this regard is not absolute. The Hon'ble Supreme Court in Meraj Khan v. Gul Ahmed (2000 SCM R 122) affirmed the order of High Court quashing the F.I.R. And refused to grant leave to appeal.
17. Nevertheless, the legal implications, which turn to be quite simple on having a glance at the second prayer whereby the petitioners have beseeched for any other relief which the High Court deemed fit in the interest of justice. I am inclined to endorse the view taken by my learned brother Amir Hani Muslim, J. That the question basically before the Court was if the petition be admitted or not. In my humble view there was no urging ground for straightaway closing the matter and dismissing it in limine. No doubt, the relief of quashment of F.I.R. Could not outright be granted, as observed by his lordship Muhammad Roshan Essani, J., but equitable relief could not be denied to the petitioners particularly, in the marked circumstances that the investigation remained inert for a period of about nine and half years and the petitioners had no alternative but to approach the High Court. As a corollary significant question that would follow is as to whether they could approach High Court only by way of invoking Constitutional jurisdiction of this Court under Article 199 of the Constitution of Pakistan, my humble answer would be in the affirmative, as also observed by his Lordship Amir Hani Muslim, J. In the context of the principles laid down in Anwar Ahmed's case (1996 SCM R 24). It is relevant to observe here that the aforesaid rule was followed in Muhammad Latif v. Sharifan Bibi (1998 SCM R 666), the relevant portion whereof runs as under:-- "It is true that it is not appropriate for the High Court to start a parallel enquiry at investigation stage. Here, the impugned order passed by the High Court for investigation of the case by a Gazetted Police Officer did not amount to interference with the investigation. The High Court in exercise of its Constitutional jurisdiction was right in issuing the aforesaid directions in order to ensure justice and fairplay, particularly, in view of the subsequent statement made by the D.S.P.
That a false case was registered against the detenu Amjad with ulterior motive. In the case of Anwar Ahmed Khan v. The State (1996 SCM R 24), this Court observed that Investigating Authorities do not have entire and total authority of running investigation according to their whims and the High Court, in exercise of its Constitutional jurisdiction was competent to pass Appropriate orders where investigation was mala fide or without jurisdiction. It could also direct the concerned Authorities to finalize their reports within reasonable time, when a cognizable case under investigation is under its judicial scrutiny."
18. Essentially, therefore, in the background of frustrating delay in commencement of the investigation and particularly when not a single step had been taken by the investigating agency or for that matter when there was no order passed by any Court in exercise of jurisdiction under C Code of Criminal Procedure the right course in the light of rule laid down in the aforesaid authorities was to approach the High Court invoking its Constitutional jurisdiction under Article 199 of the Constitution. The petition, in view of this conclusion, stands admitted for regular hearing, but since new developments, as discussed above, have been pointed out by the learned counsel for petitioners that is to say another petition has been filed relating to the same crime/F.I.R., this petition may be taken up and heard along with the said petition if it has not been disposed of by this time. Needless to mention that the petitioners would be at liberty to withdraw their petition; such motion will be decided by the Court.
19. The Reference stands disposed of.