Dr. SHER AFGAN KHAN NIAZI vs ALI S. HABIB and others

JAVED IQBAL, J.---This appeal with leave of the Court is directed against order dated 6-4-2005 whereby I.C.A.

Bearing NO.20 of 2004 preferred on behalf of appellant has been dismissed.

2. Leave to appeal was granted by means of order dated 13-12-2005 which is reproduced herein below for ready reference:-- "Learned counsel for the petitioner inter alia contended that in view of the judgment in the case of Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another (PLD 1971 SC 677) reiterated in the case of Malik Shaukat Ali and 12 others v. Ghulam Qasim Khan Khakwani and others (PLD 1994 SC 281) the High Court was not justified in quashing the investigation at preliminary stage, pending against the respondents.

(2) On the other hand learned counsel for respondents stated that judgments cited by petitioner's counsel are not applicable at all. Besides, no case of criminal liability has been made out against respondents in view of the facts and circumstances of the case, therefore, High Court was justified to quash the proceedings.

(3) Leave to appeal is granted inter alia to examine contentions of both the sides in depth.

(4) As short point is involved in this case, therefore, office is directed to fix appeal arising out of this petition in the month of March, 2006."

3. Precisely stated the facts of the case are "that Bahram Khan, a young son of Dr. Sher Afgan Khan, respondent No,3, lost his life in a road accident in Islamabad. The unfortunate incident was reported at Police Station Margalla, on 22-10-2002 at 9-00 p.m. By Ajmal Khan respondent No,2 vide report No,38. According to F.I.R. No,331, the said complainant stated that while he was present on his Motorcycle at Karachi Company , Bahram son of Dr. Sher Afgan Khan who belonged to his area met him and he was asked to accompany the former to Blue Area where he had to go for an important piece of work. Bahram Khan proceeded in his Car No,LXZ-53 and he followed him on his Motorcycle. While they were going towards Blue Area at about 7-15 p.m., opposite PIMS Hospital on Khayaban-e-Quaid-e-Azam, when they reached near U-turn, Wagon No,K-1985 (Peshawar) and driven by Sheraz took U-turn without stopping and struck the car of Bahram Khan on the front left portion as a result whereof the front portion of the car was completely destroyed while Bahrain Khan was seriously injured and lost consciousness.

Several passengers in the wagon were also injured. He, with the help of the passersby had gathered there took Bahram Khan to the Hospital on another car where the Doctor declared that Bahram Khan has died because of the injuries received in the accident. It was stated that the accident was the result of rash and negligent act of the Driver who took the U-turn at a fast speed. A case under sections 324/37.7-g/279/427, P.P.C. Was registered. "

However , on the complaint of Dr. Sher Afgan Khan Niazi to S.H.O. Police Station Margalla Islamabad, sections 322 and 420, P.P.C. Were added in the F.I.R. By means of Zimni No,11 and consequ ently a case was got registered against Mr. Fuji Cho, President of Toyota Motor Corporation of Japan (respondent No,3) besides Ali A. Habib, Managing Director Indus Motor Company Limited (respondent No,1) and Mazha r Walji, Chief Executive, Indus Motor Company Limited (respondent No,2). Being aggrieved, a writ petition seeking quashment of the F.I.R. Was filed and admitted for regular hearing on 3-12-2002 and finally sections 322 and 420, P.P.C. Registered against the respondents were declared to be without lawful authority and quashed accordingly . The ICA filed by the appellants was dismissed vide judgment impugned hence this appeal.

4. Syed Iftikhar Hussain Gillani, learned Senior Advocate Supreme Court entered appearance on behalf of appellant and urged with vehemence that legal and factual aspects of the matter have not been appreciated in its true perspective which resulted in serious miscarriage of justice. In order to support the said contention it is urged emphatically that the addition of sections 322 and 420, P.P.C. Could not have been quashed by the learned single Judge of Lahore High Court in exercise of Constitutional jurisdiction as conferred upon him under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (herein after referred to as the Constitution) as adequate alternate remedy was available such as the provisions as enumerated in sections 551 and 63, Cr.P.C., rule 24.7 of the Police Rules, 1934 and sections 249-A and 265-K of Cr.P.C. Which escaped the notice of learned High Court causing serious miscarriage of justice. It is pressed time and again that in view of alternate remedy as mentioned herein above, the question of invocation of the provisions as enumerated under Article 199 of the Constitution does not arise. It is urged emphatically that Bahram Khan son of Dr. Sher Afgan Khan Niazi died due to failure of the SRS Air Bag i,e, safety system installed in a car by the manufacturers which in fact was never installed which caused the death of Bahram Khan and it amounts to cheating. It is pointed out that the learned single Judge should have not quashed sections 322 and 420, P.P.C. As the investigation was yet to be commenced and it was too premature to direct the police for deletion of sections 322 and 420, P.P.C. From the F.I.R. As the question of sufficiency or insuf ficiency of incriminating material could have only been decided on the basis of evidence which was yet to be collected by the police. It is pointed out that in view of the judicial consensus the High Court cannot adopt the role of investigation agency as no such power has been conferred upon it under Article 199 of the Constitution which amounts to delivering of judgment without having gone through the evidence and on this score along the order impugned is liable to be set aside. The learned Advocate Supreme Court on behalf of appellant urged with firmness that the question of "mala fides" or "mens rea" could have only been decided on the basis of evidence which was to be led by the appellant to substantiate the accusation but no such opportunity was afforded and the factum of "mala fides" and "mens rea" were decided by the learned single Judge by assuming role of trial court which was not in consonance with the provisions as laid down in Article 199 of the Constitution. It is next contended that the learned High Court cannot decide the question of fact by making a thorough probe into the incident which aspect of the matter squarely falls within the jurisdictional domain of police such as to whether the car bearing No,LXZ-53 was supplied with SRS-Air Bag system or otherwise and as to whether the system was specially meant as a safeguard against the accidents to save the driver's life as prescribed in Toyota Owner's Manual and whether due to the failure of SRS Airbag system in the car resulted into the death of Bahram Khan amounting to criminal negligence on the part of respondents being administrative heads of the Toyota/Indus Motor Company limited. It is contended that as a result of preliminary investigation, respondents were found guilty by the police but could not be arrested due to uncalled for interference by the learned single Judge in chambers. It is argued that such proceedings could not have been quashed by the learned High Court even in exercise of its inherent jurisdiction as conferred upon it under , section 561-A, Cr.P.C. And what to say about Constitutional jurisdiction. It is also argued that the respondents never joined the investigation but on the contrary approached the learned High Court and all other forums available in the judicial hierarchy for the redressal of their grievances, if any, have been ignored without any rhyme and reason.

5. Mr. Khalid Anwar , learned Senior Advocate Supreme Court entered appearance on behalf of respondents while Mr. Muddassir Khalid Abbasi, learned Assistant Advocate General, Punjab remained present for State. The S.H.O.

Of Police Station Margalla (respondent No,4) and Ajmal Khan (respondent No,4) appeared in person. It is mainly contended by Mr. Khalid Anwar , learned Senior Advocate Supreme Court that the F.I.R. Was got lodged with ulterior motive and mala fides in order to get maximum benefit from Toyota Motor Corporation of Japan and Indus Motor Company Limited Karachi. It is next contended that sections 322 and 420, P.P.C. Have been added without any lawful justification and it was a result of deliberation and no legal justification whatsoever was available and accordingly the same have rightly been deleted by the learned High Court in exercise of jurisdiction as conferred upon the learned single Judge in chambers under Article 199 of the Constitution read with section 561-A, Cr.P.C.

As there was absolutely no probability of conviction and it was misuse and abuse of authority by the complainant being a Parliamentarian to harass the respondents. It is next contended that the respondents had never made any transaction directly with Bahram Khan son of Dr. Sher Afgan Khan Niazi (appellant) and in fact a second hand car was purchased by the deceased hence no' fault whatsoever could be attributed to the respondents. It is also contended that by no stretch of imagination. The provisions as enumerated in sections 322 and 420, P.P.C. Can be added in the F.I.R. As no unlawful act whatsoever was committed by the respondents which was never specified or clarified by the appellant. It is also contended that the factum of fraud and cheating has got its own peculiar characteristics and no evidence whatsoever has come on record or any allegation made to substantiate the factum, of fraud and cheating. It is also contended that the respondents cannot be held responsible for the installation of the airbag being not concerned with such an installation and more so they had no concern whatsoever with the manufacturing process of such airbag hence they cannot be held responsible for the failure of such a safety system. It is also pointed out that airbag does not provide 100 per cent safety and its performance depends upon certain conditions as stipulated in the Owner's Manual made available with each Automobile. It is contended that complete protection was never assured through airbag system by the Toyota Motor Corporation and in view of the nature of accident i,e, head on collision, the respondents cannot be held responsible. It is also pointed out that the death of Bahram Khan was not the result of alleged failure of SRS Airbag system. It is also mentioned that a line of distinction is to be drawn between the executive authority and technical functionaries before any responsibility could be attributed but the appellant has failed to do so. Mr. Khalid Anwar , learned Senior Advocate Supreme Court has mentioned in an unambiguous manner that the appeal is based on mala fides as Mr. Fujio Cho (President of Toyota Motor Corporation of Japan) being not concerned with the accident has been involved in a concocted story having no foundation and Mr. Fujio Cho, the President of Toyota Motor Corporation of Japan, cannot even remotely be connected with the alleged offence subsequently added in the F.I.R. It is further argued that no reliance could have been placed on the report of Moto r Vehicle Examiner qua failure of the SRS Airbag system as a highly technical, scientific and complicated process was involved which is beyond the competency of a Motor Vehicle Examiner with limited knowledge to opine on such a complicated technical issue. It is also argued that ICA was not maintainable before the High Court and has rightly been dismissed in view of the dictum laid down in case titled Nawazul Haq Chowhan v . State ( 2003 SCMR 1597 ).

6. We have carefully examined the respective contentions as agitated on behalf of appellant and for the respondents in the light of relevant provisions of law and record of the case and perused the judgments passed by learned single Judge of Lahore High Court dated 25-3-2003 and order delivered by learned Lahore High Court, (Rawalpindi Bench) dated 6-4-2005. We have decided to confine ourselves to the points which were mainly considered while granting leave. ,The basic question which needs determinatio n would be as to whether the provisions as enumerated under Article 199 of the Constitution read with section 561-A, Cr.P.C., the proceedings could have been quashed on its initial stage or otherwise? It transpired from the scrutiny of record that the case of appellant mainly revolves around the fact that due to defective manufacturing and substandard SRS Airbag system installed in car No, LXZ-53 Toyota Corolla driven by deceased Bahram Khan was responsible for the death of Behram Khan. Let we make it clear at the outset that the installation of SRS Airbag system was never seriously disputed by the respondents meaning thereby that SRS Airbag system was installed in car No,LXZ53 which has been described as follows : "The SRS (Supplemental Restraint system) airbag is designed to provide furthe r protection to the driver when added to the primary protection provided by the seat belt.

In response to a severe frontal impact the SRS airbag works together with the seat belt to preventor reduce injury by inflating in order to decrease the likelihood of the driver's head or chest directly hitting the steering wheel.

In a severe frontal impact, the sensor detects deceleration and triggers the airbag inflator . Then a chemical reaction in the inflator momentarily takes the airbag with non-toxic nitrogen gas to help restrain the forward motion of the driver .

'When the airbag inflates, it produces a fairly loud noise and releases some smoke along with the nitrogen gas.

This is not harmful and does not indicate a fire, Be sure to wash off any residue as soon as possible to prevent minor skin irritation.

Deployment of the airbag happens in a' fraction of a second, so the airbag must inflate with considerable force.

While the system is designed to reduce serious injuries it may also cause minor burns or 'abrasions and swellings.

The steering wheel hub may be hot for several minutes but the airbag itself will not be hot. The airbag is designed to inflate only once.

The SRS airbag system is designed to activate in response to a severe frontal impact within the shaded area between the arrows in the illustration.

The SRS airbag will deploy if the severit y of the impact is above the designed threshold level, comparable to an approximate 20 km (14 mph) collision when impacting straight into a fixed barrier that does not move or deform.

If the severity of the impact is below the above threshold level, the SRS airbag may not deploy .

However , this threshold velocity will be considerably higher if the vehicle strikes an object, such as a parked vehicles or sign C pole which can move or deform on impact or if it is involved in an underride collision (e.g. a collision in which the nose of the vehicle underrides or goes under the bed of a truck).

For the safely of all occupants be sure to always wear seat belts.

The SRS airbag is not designed to inflate if the vehicle is subjected to a side or rear impact if it rolls over or if it is involved in a low speed frontal collision.

The SRS airbag system is designed only as a supplement to the primary protectio n of the seat belt system of the Driver . The driver is particularly susceptible to injury if he/she does not wear his/her seat belt. When sudden breaking or a collision occdrs, he/she may be thrown forward. To obtain further protection in an accident the driver and all passengers in the vehicle should always wear their seat belts when driving."

7. A careful analysis of the abovementioned system would indicate that it provides protection to the driver and can be considered as addition D to the primary protection provided by the seat belt. It has come on record that at the time of accident, the seat belt was in use of the deceased and prima facie the system could not work properly which aspect of the matter can only be decided on the basis of evidence which could not be collected by the police due to prolonged litigation before differen t forums and resultantly the respondents had never remained associated with the investigation. The question as to whether as to the precautionary measures enumerated in the manual itself such as any modification, strike or jolt any component, such as the steering wheel or column cover resulting in the failure of the system taken by the deceased or otherwise, needs a complete answer . The question as to whether the SRS Airbag system installed in the automobile under use by the decea sed was a typical airbag system or it was meant for a complete or general security and as to whether various conditions under which airbags are designed to function were available or otherwise, also require consideration. It also requires examination as to whether the SRS Airbag system (Supple mental Restraint System) are designed to protect complete security or otherwise? The abovementioned questions being questions of facts should have been dilated upon and decided by the forums concerned. It also trans pired from the scrutiny of record that Motor Vehicle Examiner , Rawalpindi/Islamabad has mentioned in his report dated 4-11-2002 that Airbag system could not operate properly and completely failed. Besides that during investigation by Islamabad Police, it could not be proved that any error was committed by the deceased culminated into the accident and the only precautionary measure which could have been taken was the use of seat belt which the deceased had fastened i,e, the only requirement of the safety of driver . It is worth mentioning that without having a proper investigation, no evidence could be collected to prima facie prove the criminal negligence on the part of respondents for installation of defective SRS Airbag system.

Amounting to -fraud due to. Which Bahram Khan died in the accident and in such a scenario as to whether the provisions of sections 322/420, P.P.C. Were applicable or nor, could not have been answered. We have no hesitation in our mind to hold that the factum of "mala fides" or "mensrea" could not be proved without recording evidence or collecting incriminating material in exercise of Constitutional jurisdictio n as conferred upon High Court under Article 199 of the Constitution read with section 561-A, Cr.P.C. As mentioned herein above, there are certain questions such as the installation of SRS Airbag system is equipped with the safety condition of the driver of the car in all eventualities or it was just a safeguard and whether it remained non-functional and can be equated to that of criminal negligence or otherwise? The same cannot be answered without collection of evidence.

8. We have not persuaded to agree with the argument as advanced on behalf of the respondents that the incident falls within the jurisdictional domain of civil court for which a suit has been filed for the reasons that initiation of criminal action or F.I.R. Cannot be quashed merely on the ground that a civil suit has been filed. In this regard we are fortified by the dictum laid down in case titled Sarfraz Khan v. The State and .2 others (1996 SCMR 186). In such view of the matter the learned single Judge of the Lahore High Court (Raw alpindi Bench) should have not quashed the F.I.R. And an opportunity be afforded to the police to complete its investigation. The order has been passed in oblivion of the fact that respondents could have invoked the provisions as enumerated in sections 63 and 551 of Cr.P.C., read with rule 24.7 of the Police Rules, 1934 and sections 249-A and 265-K of Cr.P.C. It is worth mentioning that at the time of quashment of the F.I.R., the respondents had not joined the investigation and their point of view could not be obtained by the police and the question of criminal negligence due to the alleged installation of defective SRS Airbag syste m could not be answered. Besides that it is for the police or the learned trial Court to G determine the ingredients of sections 322 and 420, P.P.C. On the basis of evidence to be evaluated by it at first instance and no opinion should have been formed in exercise of Const itutional jurisdiction as conferred upon learned High Court under Article 199 of the Constitution read with section 561-A, Cr .P .C. We have already mentioned that adequate remedies were available to the respondents and hence the question of invocation of the provisions as enumerated in section 561-A, CrP.C. Should have been dealt with care and caution which could not be done. The question of adequate or alternate remedy has been discussed time and again by this Court and it is well settled by now that "the words "adequate remedy" connote an efficacious, convenient, beneficial, effective and speedy remedy . It should be equally inexpensive and expeditious. To effectively bar the jurisdiction of the High Court under this Article the remedy available under the law must be able to H accomplish the same purpose which is sought to be achieved through a petition under Art.

199. The other remedy in order to be adequate must be equally convenient, beneficial and effective. The relief afforded by the ordinary law must not be less efficacious, more expensive and cumbersome to achieve as compared to that provided under the Article. This depends on the circumstances of each case." (Gul Ahmed Textile Mills Ltd v. Collector of Customs (Appraisement) 1990 MLD 126, Pak. Metal Industries v. Assistant Collector 1990 CLC 1022, Allah Wasaya v. Tehsildar/AC 1st Grade 1981 CLC 1202 , Syed Riaz Hussain Zaidi v. Muhammad Iqbal PLD 1981 Lah. 215 Abdul Hafeez v . Chairman, Municipal Corporation ( PLD 1967 Lah. 1251 ).

9. The learned High Court will have to consider in each case the following tests to be applied to determine the adequacy of the relief:--

(i) If the relief available through the alternative remedy in its nature or extent is not what is necessary to give the requisite relief, the alternative remedy is not an "other adequate remedy" within the meaning of Article 199.

(ii) If the relief available through the alternative remedy , in its nature and extent, is what is necessary to give the requisite relief, the 'adequacy' of the alternative remedy must further be judged, with reference to a comparison of the speed, expense or convenience of obtaining that relief through the alternative remedy , with the speed, expense or convenience of obtaining it under Article 199. But in making this comparison those factors must not be taken into account which would themselves alter if the remedy under Article 199 were used as a substitute for the other remedy .

(iii) In practice the following steps may be taken:-

(a) Formulate the grievance in the given case, as a generalized category;

(b) Formulate the relief that is necessary to redress that category of grievance;

(c) See if the law has prescribed any remedy that can redress that category of grievance in that way and to the required extent;

(d) If such a remedy is prescribed the law contemplates that resort must be had to that remedy;

(e) If it appears that the machinery established for the purposes of that remedy is not functioning properly , the correct step to take will be a step that is calculated to ensure, as far as lies in the power of the Court, that that machinery begins to function as it should. It would not be correct to take over the function of that machinery . If the function of another organ is taken over, that other organ will atrophy , and the organ that takes over, will break clown under the strain;

(f) If there is no other remedy that can redress that category of grievance in that way and to the required extent, or if there is such a remedy but conditions are attached to it which for a particular category of cases would neutralise or defeat it so as to deprive it of its substance, the Court should give the requisite relief under Article 199;

(g) If there is such other remedy , but there is something so special in the circumstances of a given case that the other remedy which generally adequate, to the relief required for that category of grievance, is not adequate to the relief that is essential in the very special category to which that case belongs, the Court should give the required relief under Article 199.

If the procedure for obtaining the relief by some other proceedings is too cumbersome or the relief cannot be obtained without delay and expense, or the delay would make the grant of the relief meaningless this court would not hesitate to issue a writ if the party applying for it is found entitled to it, simpl y because the party could have chosen another course to obtain the relief which is due." (Ibrahim T.M. Ltd. v. Federation of Pakistan PLD 1989 Lah. 47, Allah Ditta v. Muhammad Saeed Vatoo PLD 1961 Lah. 479, Shamas Din and Bros. v. Income-tax and Sales Tax Of ficer PLD 1959 Lah. 955 , Khaliq Najam Co. v . Sales-T ax Of ficer PLD 1959 Lahore 915 ).

10. Besides that what has been discussed herein above there are certain disputed questions of facts which cannot be investigated while exercising Constitutional jurisdiction. "It is incumbent upon party seeking constitutional remedy to show that such party has a clear legal right and that such right is so clear as not to admit of a reasonable doubt or controversy . High Court will not go into disputed questions of fact in Constitutional jurisdiction. This is more so when it is supported by attending circumstances and relevant record. Constitu tional jurisdiction of High Court, cannot be converted into that of an appel late Court. Disputed questions of fact cannot be entertained or allowed to be reagitated in writ jurisdiction. When the relevant law provides other forums for the purpose. It follows that finding of fact recorded by appellate Court below on appraisal of evidence cannot be disturbed in writ jurisdiction. In constitutional jurisdiction Court does not go into a question involving minute details nor can it decide facts of which no foundation is laid, unless it is shown that such controversy is devoid of supporting record, or perverse. " (M.H.

Abidi v. State Life Insurance Corporation 1990 MLD 563, Muhammad Nazim v. Rehana Parveen Begum 1990 MLD 344).

11. It is well settled by now that "the superior Courts should not involve themselves into investigations of disputed question of fact which necessitate taking of evidence. This can more appropriate ly be done in the ordinary civil procedure for litigation, by a suit. This extraordinary jurisdiction is intended prima rily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or L other authority can be established without any elaborate enquiry into compl icated or disputed facts. Controverted questions of fact, adjudication on which is possible only after obtaining all types of evidence in power and possession of parties can be determined only be courts having plenary jurisdiction in matter and on such ground constitutional petition was incompetent. "

(State Life Insurance Corporation of Pakistan v . Pakistan Tobacco Co. Ltd. PLD 1983 SC 280 ).

12. We are conscious of the fact that "in criminal cases the general rule is that the accused must always be presumed to be innocent and the onus of proving everything essential to the establishment of the offence is on the prosecution. All that may be necessary for the accused is to offer some explanations of the prosecution evidence and if this appears to be reasonable even though not beyond doubt and to be consistent with the innocence of accused, he should be given the benefit of it. The proof of the case against accused must depend for its support not upon the absence or want of any explanation on the part of the accused but upon the positive and affirmative evidence of the guilt that is led by the prosecution to substantiate accusation. There is no cavil with the proposition and judicial consensus seems to be that "if on the facts proved no hypothesis consistent with the innocence of the accused can be suggested, the convicti on must be upheld. If however , such facts can be reconciled with any reasonable hypothesis compatible with the innocence of the accused the case will have to be treated as one of no evidence and the conviction and the sentence will in that case have to be quashed." In this Regard reference can be made to the cases titled PLD 1956 FC 123, AIR 1956 SC 316, Phipson Evidence 7th Ed. Page 33, Jagdish Ram v. Mukand Lal, 1928 L.763, Hem Chandra De Sarkar v. Amiyabala De Sarkar , 52 C. 121, Muhammad Tahir v.

Raghubar Dayal, 11 IC 761, Pankjammal v. Secretary of State, 40 I. C. 516, Pand urang v. Tukaram, 1934 N. 253, Peddi Reddy Fagi Reddi v. Panem Chirinabbi Reddi 56 I.A. 6, Chainta Dasya v. Bhalku Das, 1930 C.591, Ganga Ram v. Rulia, 2 L.249, Rangavva Hanmappa Bidri v. Sheshappa Bidri 51 B.258, Pandurang v. Tukaram 1934 N 253, Bishambar Das v. Telu Ram 1934 L.1019, Pokhar Day v. Thakar Das, 1930 L. 213(2), Jadu Nath v. Ramun Mal, 1921 L.284, Ruthna Gramany v. Veerabudra Aiyar , 21 IC 96, Sita Ram v. Haidar Khan, 25 I.C. 138, Makund v.

Bahori Lal, 3 A. 824, Muhammad Tahir v. Raghubar Dayal 11 LC 76, Hajee Lin v. Mating Ba 5 R. 822, Jadu Nath v.

Ramun Mal 1921 L. 284, Peddi Reddy Jogi Reddi v. Panem Chinnabbi Reddi 56 I.A. 6, Uttarn Chand Ishwar v.

Hakim Muhammad Sharif 1932 L. 417, Phipson, Ev., 7th Edn. 33, Taylor and 371, Over v. Harwood (1900) I QB 803, Bindra v. 1934 0. 485, Deputy Legal Remembrancer , Behar and Orssa v. Mathukdhari Singh 32 IC 137, Shahzad Khan v. E, 1933 P.513, 515, Robert Stuart Wanchoe v.E. 161 C. 168, Wolmintton v. The Director of Public Prosecutions 1935 AC 462, Nannhum v. E 165 IC 458, Muhammad Rafi v. E 1933 P. 598, Mohidin Karim v. E 551 IC 849, Gendan Lal v. E. 1930 0. 460, Basudeb Mandar v. E 1929 P. 112, Lila Ram v. E 1927 L. 862(2), Surat Singh v. Crown 1923 L.42, Mst. Jahura Bibi v. E 1931 C. 11, Rannum v. E 7L: 84, Ghauns v. E 7L.561, Dinarnani Udaipal Ram Twary v. E 98 IC 241,. Nur Khan v. E. 1927 0.611, Muzaf far v. E 99 IC 322, Bishambar Nath Baijpai v. E 1925 0.676, Woolmington v. The Director of Public Prosecutions 1935 AC 462, E. v. Damapala 14 R. 666, Bai Mani v.

Usafali Bhudar 1931 B. 229, Muhammad Luqman v. State PLD 1970 SC 10, Shamoon v. State 1995 SCMR 1377 ; Wali Muhammad v. The State 1969 SCMR 612, Khushi Muhammad v. Muhammad Hanif 1980 SCMR 616, Ali Sher v. State PLD 1980 SC 317, Hakim Ali v. State .1971 SCMR 432, Rab Nawaz v. State PLD 1994 SC 858." Pir Mazharul Ha v. The State throu h Chief Ehtesab Commissioner , Islamabad (PLD 2005 SC 63). How the question of innocence of the respondents could be determined at a premature stage N by deciding that certain penal provisions would not be attracted.

13. There is no cavil to the proposition that "it is generally accepted that the inherent jurisdiction should not normally be invoked where another remedy is available. Inherent powers are preserved to meet a lacuna, in the Criminal Procedure Code in extraordinary cases and are not 0 intended for vesting the High Courts with powers to make any order which they are pleased to consider to be in the interests of justice. These powers are as much controlled by principles and precedents as are its express statutory powers. Where, in quashing proceedings in the Additional District Magistrate's Court, the High Court, in support of its order , had set out the grounds, viz: (1) that it was not the business of the police to submit any challan for the commission of offences not disclosed in the First Information Report; (2) that the police had given a twist to the case and instead of reporting that the allegations made by the appellant were not true came to the conclusion that the accused had committed other offences; (3) if the conclusions arrived at by the police were correct then it could only mean that the allegations made by the appellant the duty of the Court to scrutinise the cases carefully before framing charges in view of the fact that the conclusions arrived at by the police ran counter to the allegations contained in the report and this the Court framing the charges had not done; (5) that the dispute between the appellant and the company was essentially of a civil nature and as such, the accused should not have been sent up for trial on the alleged criminal charges; and (6) that in the circumstances the prosecutions started by the police were "nothing but an abuse of the process of the Court". Held, that the reasons given by the High Court were by no means, cogent . If, in fact, an offence had been committed justice required that it should be enquired into and tried. If the respondents are not guilty they have a right to be declared as honourably acquitted by a competent Court. On the other hand, if the evidence against the respondents discloses a prima facie case then justice clearly requires that the trial should proceed according to law. The mere fact that a long period has expired since the initiation of proceeding s is no ground for quashing the criminal proceeding. (Emphasis provided) R.C.P . Guignard v. The State and another PLD 1963 Kar. 868 considered. M. S. Khawaja v. The State PLD 1965 SC 287 and The Public Prosecutor v. Ratnavelu Chetty ILR 49 Mad. 525 ref Ghulam Muhammad v . Muzammal Khan (PLD 1967 Supreme Court 317).

14. The general practice of learned High Court which is well entrenched seems to be that no proceedings should be quashed ordinarily in view of the powers as conferred upon it under section 561-A, Cr.P.C. Unless the trial court exercises its power under section 249A, Cr.P.C. Or section 265-K, Cr.P.C. However , in exceptional cases, the power as conferred upon High Court under section 561-A, Cr.P.C. Could have been exercised. If any reference is required, the case titled State v. Asif Ali Zardari (1994 SCMR 798), Muhammad Khalid Mukhtar v. State (PLD 1997 SC 275 ) can be referred.

15. The provisions as enumerated in sections 561-A, 154 and 156, Cr.P.C. Were discussed in case titled Emperor v Nazir Ahmad AIR (32) 1945 P .C. 18 as under:-- "Just as it is essential that every one 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 matters which are within their province and into which the law imposes upon them the duty of enquiry . In India there is a statutory right on the part of the police under Ss. 154 and 156, to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would 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 S.561-A. The function 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 appropr iate case when moved under 5.491, Criminal Procedure Code to give directions in the nature of habeas corpus. In the case of a cognizable offence, the Court's functions begin when a charge is preferred before it and not until. Then and therefore, the High Court can interfere under S.561-A only when a charge has been preferred and not before. As the police have under Ss.b4 and 156, a statutory right to investigate a cognizable offence without requiring the sanction of the Court to quash the police investigation on the ground that it would be an abuse of the powers of the Court would be to act on treacherous grounds: (16) 3 AIR 1916 P .C. 64".

16. In Shahnaz Begum v. The Hon'ble Judges of The High Court of Sindh and Baluchistan (PLD 1971 SC 677) it was made abundant clear that the "the High Court has no power under section 561-A of the Cr,P.C. To interfere with police investigations into criminal offences. In the case of Ghulam Muhammad v. Muzammal Khan PLD 1967 SC 317 the Supreme Court had occasion to point out that the power given by section 561-A, Cr. P.C., "can certainly not he so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute." If an investigation is launched mala fide or is clearly beyond the jurisdiction of the investigating agencies concerned then it may be possible for the action of the investigating agencies to be corrected by a proper proceeding either under Article 98 of the Constitution of 1962 or under the provisio ns of section 491 of the Criminal Procedure Code, if the applicant is in the latter case in detention, but not by invoking the inherent power under section 561-A of the Criminal Procedure Code. Shashadhar Acharjya v. Sir Charles Tegart AIR 1932 Cal: 229; Muhammad Hussain v. Inspector -Genera l of Police PLD 196 7 Lah. 1123; Shamsuddin v. Captain Gauhar Ayyub PLD 1965 SC 496; Crown v. Muhammad Sadiq Niaz PLD 1949 Lah. 562; Emperor v. Kh. Nazir Ahmad AIR 1945 PC 18; State of West Bengal v. S. N. Basa k AIR 1963 SC 447;; Sher Khan and others v. The State 1968 SCMR 62; Ghulam Muhammad v. Muzammal Khan PLD 1967 SC 317 and M. S. Khawaja v. The State PLD 1965 SC 287 ref.

"

17. While dealing with a similar proposition in case titled Malik Muhammad Tufail v. S.H.O. Police Station Mitha Dar, Karachi (South) and others ( 1989 SCMR 922 ), it was discussed as follows:-- "The petitioner in his Constitutional petition had prayed that F.I.R. No,194 of 1988 under sections 419/420/406/468/471/34, P.P.C. Relating to Police Station Mitha Dar Karachi (South) and the consequent investigation thereon be declared as without lawful authority being based on mala fides and, therefore, of no legal effect. It was further prayed that the respondent be restrained from taking further proceedings in respect of the said F:I.R. Or to arrest the petitioner or his sons.

The learned Judges of the High Court rejected the petition observing: "It is well settled law that the Court will not stifle the, very investigation. In the case of Shahnaz Begum v. Hon'ble Judges of the High Court of Sindh and Baluchistan PLD 1971 SC 677 their lordships have held: "The power to issue the direction cannot be invoked where investigation has already commenced in accordance with law by authorities competent to investigate under the Criminal Procedure Code nor does the power to "Direct" include the power to "transfer" from one competent investigation agency to another". (Emphasis provided)

This would be unwarranted interference with the investigation which has been disproved by the Judicial Committee of the Privy Council in the case of Emperor v . Khawaja Nazir Ahmad AIR 1945 PC 18." (Emphasis provided)

18. The jurisdiction of courts in the arena of investigation has been dilated upon in another case titled Brig. (Retd.)

Imtiaz Ahmad. v. Government of Pakistan through Secretary , Interior Division, Islamabad and 2 others (1994 SCMR 2142 ) and it was held as follows:-- "17. Along the same lines has the law developed in this country . As recently as January , 1994, this Court in "Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others" (PLD 1994 SC 281), had the occasion to deal with the question of the "nature of the continued control exercised by the Court over the investigation" in the light of two orders made by a learned Judge in the High Court during the pendency of a writ petition. The first order directed the Investigating Officer to finalize the investigation by a certain date and in the second order which was made on the statement of the Investigating Officer that out of the 21 accused persons, only two had been arrested and that challan was being submitted, the learned Judge observed that if "most of the accused have not been arrested what is the use of submitting the challan", that he was not satisfied with the performance of the Anti-Corruption Department and directed notice to be issued to the Additional Director Anti- Corruption to appear and show cause "as to why adverse observation about his efficiency and performance should not be passed by this Court and the same should be placed on his personal file". This Court thought it necessary to reiterate the Privy Council's classic words of caution to the Courts in the matter of interfering with the police investigation .In Khawaja Nazir Ahmad's case AIR 1945 Privy Council 18 namely: "Just as it is essential that every one 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 matter which are within their province and into which the law imposes upon them the duty of enquiry ...There is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without enquiring 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. 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 directions 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."

This Court held, therefore, "that the continued control over the investigation exercised by the Court as in this case was prejudicial to the accused and detrimental to the fairness of the procedure apart from being without jurisdiction" .(Emphasis provided)

19. In the light of what has been discussed herein above and in view of the various complicated questions of facts availability of alternate/ adequate remedies and premature stage, no interference should have been made by the learned High Court in exercise of its Constitution Jurisdiction as conferred upon it under Article 199-A read with section 561-A, Cr.P.C. The Intra Court Appeal has, however has rightly been rejected in view of the dictum laid down by this Court in titled Nawazul Haq Chowhan v . State ( 2003 SCMR 1597 ).

20. Be that as it may, this appeal is accepted, the judgment impugned set aside and the Investigating Officer is hereby directed to proceed with the matter in accordance with law in a fair and transparent manner as it would be in the interest of justice.