' MUHAMMAD NAWAZ BHATTI, J.--- Through this petition the petitioner has sought setting aside the order dated 4-7-2005 passed by the learned Additional District Judge/Justice of Peace, Vehari and quashment of case F.I.R. No, 181 of 2005, dated 5-7-2005 under sections 395/452/337-J, P.P.C.
Registered on the complaint of Muhammad Anwar, Manager, Farooq Chemical Company Pvt. Ltd., which works as a Mucadam for United Bank Ltd. At Police Station Thingi District Vehari against the petitioner and other co-accused.
2. Brief facts of the case are that an application was moved by Muhammad Anwar Manager Farooq Chemical Company Pvt. Ltd. To the learned Sessions Judge/Justice of Peace, Vehari that on 26-6-2005 in the morning at about 7-00 a.m. Godown keeper namely Muhammad Asif informed the complainant on telephone about the occurrence upon which he rushed to the spot when Muhammad Asif told him that on the preceding night at about 11-00 p.m. Muhammad Naveed and Muhammad Mushtaq served tea to the guards appointed on duty there namely Habib Ullah and Khadim Hussain, who after having the same became unconscious. Soon after that other about 15 unknown accused persons armed with rifle .222, gun .12 bore and hatchet allegedly overpowered both guards and the godown keepers namely Asif and Zakir Hussain and snatched the rifle .12 bore of Habib Ullah and gun .7 mm of Khadim Hussain and while beating, locked them in the office of the factory, and forcibly took away the stock amounting to Rs,15/16,00,000 (Rupees fifteen/sixteen lac only) on tractor trolley, oil tankers and trucks. Learned Additional Sessions Judge, Vehari after hearing the parties vide order, dated 4-7-2005 directed the petitioner to appear before the S.H.O.
Concerned who was directed to register the case if commission of cognizable offence was made out. Consequently, the impugned F.I.R. No, 181 of 2005 was registered with Police Station Thingi District Vehari. Hence this petition.
3. Learned counsel for the petitioner submits that registration of case against the petitioner and other co-accused is illegal as firstly that is based on the void order passed by learned Additional Sessions Judge/Justice of Peace, Vehari and secondly only a complaint can be filed before the Banking Court by duly authorized person and F.I.R. Cannot be registered; that the borrower Messrs National Enterprises through its co-proprietor Rizwan Akbar filed a suit for declaration before the learned Judge, Banking Court, Multan in which the whole story was mentioned who vide order dated 28-6-2005 issued notice to defendants i,e, bank etc. For 27-7-2005 and also directed not to use any coercive measures against the plaintiff, that as a counter-blast the so-called Maccadam Company has got the above mentioned case registered. Further submits that as the matter was between the customer and bank so under section 7(4) of the Financial Institutions Recovery of Finance(es) Ordinance, 2001 the complaints in such-like matters are liable to be filed in the Banking Court in the shape of a complaint and not an F.I.R. For the alleged offence before the police. He has relied upon Mian Asim Sharif v. I.D.B.P. And others 2005 CLD 436.
4. On the other hand learned A.A.-G. Assisted by learned counsel for respondent No, 2 has vehemently opposed the stance taken by the petitioner and submitted that the learned Additional Sessions Judge/Justice of Peace had decided the application for registration of case on merits in accordance with law; that the respondent No, 2 is fully authorized person to register the case against the petitioner as it has been incorporated in clause (x) of the agreement that "if there is any misappropriation of stocks by the client, the Mucaddam will promptly lodged F.I.R. With the police and inform the Bank accordingly".
5. I have heard learned counsel for the parties and minutely perused the record. An application was moved by Muhammad Anwar for the registration of case against the petitioner and other co- accused for the offence of dacoity, wrongful confinement and causing hurt by means of poison whereby the local police had registered a case under sections 395/ 342/337-J, P.P.C. Against the accused. F.I.R. Was Registered accordingly. The matter in Mian Asif Sharif's case reported as 2005 CLD 436 was a transaction between the Bank and the borrower while the instant application has been lodged by a private person namely Muhammad Anwar, who is neither a private company nor a borrower, as the matter did fall in the territorial jurisdiction of Police Station Thingi, therefore, the police was justified to register the case and investigate the same in accordance with law. The petitioner had not joined the A investigation and is still at large and the learned Illaqa Magistrate has issued warrants of arrest of the petitioner, therefore, the petitioner and other co-accused are required to join the investigation rather than approaching this Court at this very early stage for quashment.
6. The judgment of a Single Bench of this Court cited by learned counsel for the petitioner, as referred above is having no consonance and nexus with the present case where the quashment has been sought by a bank employee whereby the firm which had obtained the loan of Rs,20,00,000 from the bank and firm's assets had been pledged by the bank was not authorize to sell or transfer the same in violation of the terms and conditions of agreement and firm had shifted the valuable machinery of the factory to somewhere else. But here as stated above as the allegations are regarding the commission of offence of dacoity, illegal confinement and causing hurt the instant case has no consonance and nexus with the case, referred.
7. It has been held in Naseem Baig v. M. Iqbal and others 1991 SCM R 315, High Court can quash the proceedings if satisfied from the cogent material that prosecution was launched for improper motive to harass the accused or its continuance would be an abuse of process of law. It has been held in PLD 1967 SC 461 that remedy is not to be used to divert the ordinary course of criminal procedure. It has also been held D in PLD 1967 SC 317 that remedy for quashment of proceedings is not available when alternate remedy is available in the shape of sections 265-K and 249-A, Cr.P.C.
Honourable Supreme Court has observed that quashment proceedings at early stage is neither permissible nor preferred and every criminal case should be allowed to proceed on its merits, 1968 SCM R 386; PLD 1981 SC 607 and 1971 SCM R 698. It has also been held in Brig. (Retd.) Imtiaz Ahmad v.
Government of Pakistan and others 1994 SCM R 2142 that High Court cannot assume the role of investigator.
8. For what has been discussed above the instant petition having no force is dismissed in limine.