' MUHAMMAD ALI MAZHAR, J.---The present Constitutional. Petition has been filed by the petitioner with the following prayer:-
(a) That the action taken and procedure adopted against the petitioner's son namely Ali Raza Mughal, by the respondents Nos.3 and 4 who illegally took her son from her house at 1-30 a.m.
Midnight on 11-10-2010, tortured brutally her son with the shocking and ashamed way, wrongful restraint, involved him illegally under the colourable exercise of power, arrest, extortion be declared illegal, ab initio void quorum non judice and beyond jurisdiction of respondents Nos.3 and 4.
(b) To direct me respondents Nos.1 and 2 to produce the petitioner's son Ali Raza Mughal before this honourable Court and thereafter, he may be referred to Civil Surgeon, Civil Hospital, Sukkur for his thorough medical check up regarding mixer of Naswar and kerosene oil into one portion of his nose while closed the other portion of nose with fingers and his mouth closed with dirty cloth, while putting mixer into nose, and also putting stick and his bend of both arms and pulling the arms on upper side and beaten his feet.
(c) To call the comments from 2nd Civil Judge and Judicial Magistrate, Sukkur (respondent No,7) that under what provision of law learned Magistrate, simply at the request of police without assigning cogent reason in his order dated 12-10-2010, has granted police remand for 4 days of Ali Raza Mughal, the petitioner's son, in murder case F.I.R. No,34 of 2010, wherein neither his name is mentioned nor any prosecution witness have taken his name in that case.
(d) To direct Amanullah Jogi, Manager, Allied Bank Limited, March Bazar, Sukkur (respondent No,8) to produce the Account details of Ali Raza Mughal, and clarify before this honourable Court that S.H.O. Abdul Malik Kamangar (respondent No,4) either arrived at his branch twice on 11-10-2010 between 9 to 10-30 with Cheque No,00222753 duly signed and blank and he enquired from him for account balance of Ali Raza Mughal and Bank Manager refused him to disclose the detail in absence of account holder and thereafter, S.H.O. Abdul Malik Kamangar brought to Ali Raza Mughal at Allied Bank Limited, March Bazar in hands cuff on 11-10-2010 between 9-30 to 10-30 a.m. And encashed the cheque No,00222753 of Rs,6,18,000 from the counter.
(e) To also direct Amanullah Jogi, Manager (respondent No,8) to produce the CCTV recording of the day viz. 11-10-2010 between the time of 9 to 10-30 a.m. Wherein at the first instance S.H.O. Abdul Malik Kamangar (respondent No,4) argued rashly with the Bank Manager and pressurized him to disclose the Account balance and on 2nd instance he produced Ali Raza Mughal in hands cuff and encashed the cheque No,00222753, which he disclosed in F.I.R. No,180 of 2010 registered at 1315 hours on 11-10-2010 that the cheque No,00222753 is missing.
(f) To direct to A.S.-I. Ghulam Murtaza Junjeo (respondent No,5) to clarify that when the cash in sum of Rs,6,18,000 were encashed by SHO Abdul Malik Kamangar from Allied Bank. Limited March Bazar on 11-10-2010 between 9-00 to 10-30 a.m. ' and Rs,3,75,000 were secured by him and A.S.P.
Muhammad Rizwan Soomro on 11-10-2010 at about 3-00 midnight from the shop of petitioner's son which is total in cash Rs,9,93,000 and the entire amount belongs to petitioner's son Ali Raza Mughal and secured from him before 10-30 a.m. On 11-10-2010 then how he secured the said amount from the plastic shopping bag of accused Abdul Hafeez Rind at 1145 hours on 11-10-2010.
(g) To direct the respondent No,1 to register the F.I.R. Coupled with the strict departmental legal action against the responsible respondents and others police officials, who have participated in this case with mala fide intention and ulterior motive and adopted illegal methods to oblige each others and caused humiliation, harassment, maltreated the petitioner's son with illegal method and involved him in criminal case with mala fide intention, which do not warrant by law.
(h) To declare the petitioner's son Ali Raza Mughal as innocent and may please be discharged from the charge levelled against the respondents with mala fide intention and further that the cash Rs,6,18,000 encashed from the Allied Bank Limited by the S.H.O. Abdul Malik Kamangar and Rs,3,75,000 secured from the shop of the petitioner's son, the total amount in sum of Rs,9,93,000 belongs to petitioners' son and the same may be handed over to them.
(i) To grant any other just, proper and equitable relief to the petitioner, as deemed fit by this honourable Court, in circumstances of the case.
(j) To award costs of the petition.
2. Brief facts of the case are that on 23-2-2010, the petitioner's nephew Ghulam Mustafa son of Haji Muhammad Ramzan Mughal was missing with her sister's son Ghulam Murtaza Mughal and 60 Tola gold and Rs,100,000 were also missing from the shop of Ghulam Mustafa Mughal. On 28-12- 2010, Police Station, 'B' Section police called petitioner's brother Haji Muhammad Ramzan Mughal from Shikarpur and shown him a snap which he identified to be his son, whose dead body was recovered by police Patney on 24-2-2010. F.I.R. No,34 of 2010 was registered at Police Station Rohri on 25-2-2010 and on the same day postmortem was conducted.
3. It is further alleged that on 6-3-2010, the sister's son of petitioner, Ghulam Murtaza Mughal appeared before the brother of petitioner Haji Muhammad Ramzan Mughal at his house at Shikarpur, wherein he disclosed story that he along with deceased and petitioner's second son Ghulam Abbas Mughal and three unidentified persons went for dinner in a car which was stopped at Patney bridge wherefrom the unidentified person who was being called as Abdul Hafeez Rind took out pistol and made fire upon Ghulam Mustafa Mughal and petitioner's son Ghulam Abbas Mughal, took pistol from Abdul Hafeez Rind and made fire upon deceased Ghulam Mustafa Mughal.
All alleged accused persons retained the body at unknown place for about 11 days, wherefrom he (Ghulam Murtaza Mughal) escaped and reached at Shikarpur from Sukkur.
(i) Rubina Kousar Petitioner
(ii) Muhammad Jamal Son of petitioner
(iii) Haji Muhammad RamzanComplainant in Crime No.34 of 2010.
(iv) Muhammad Kamal ZargarPurchaser of gold from accused Ali Raza
(v) Haji Muhammad SaeedPresident, Sarafa Bazar Shikarpur4. It is further submitted by the petitioner that on 6-3-2010 at 5-30 p.m., F.I.R. No,34 of 2001 was registered under sections 302, 364, 344, 457, 380, 3=1, P.P.C. At police station 'B' section, Sukkur against the petitioner's son Ghulam Abbas Mughal, Abdul Hafeez Rind and two unidentified persons and the son of petitioner Ghulam Abbas Mughal was arrested in the murder case. The challan has already been submitted and matter is pending before the Court of Additional District and Sessions Judge, Sukkur.
5. It is also case of petitioner that on 11-10-2010 at about 1-30 midnight, SIP/ S.H.O. Abdul Kamangar (respondent No,4) along with A.S.P. City Muhammad Rizwan Soomro (respondent No,3) and police party taken away her younger son Ali Raza Mughal aged about 18/19 years forcibly and on interference of petitioner and other family members, the S.H.O. Abdul Malik Kamangar replied that he was taking him just for formal investigation and will drop him back within short time. On directions of police, the petitioner handed over cheque book, mobile and shop keys and S.H.O.
Abdul Malik Kamangar told Hafiz Muhammad Jamal to go with him at his shop. On 11-1-2010, ASP Muhammad Rizwan Soomro along with police party reached to the shop. With Ali Raza Mughal and Hafiz Muhammad Jamal and opened the shop, wherefrom they collected cash of Rs,3,75,000 and enquired from Hafiz Muhammad Jamal about said money which he disclosed that he sold silver on 30-9-2010 and kept money to run the shop. On 11-10-2010, S.H.O. Abdul Malik Kamangar went to police station and brought Ali Raza Mughal, petitioner's son in handcuffs and pressurized him to ask the Manager about account balance, whom the bank manager disclosed his account balance and then S.H.O. Abdul Malik Kamangar filled the amount of Rs,6,18,000 and after receiving cash, the S.H.O. Abdul Malik Kamanger brought Ali Raza Mughal at police station 'B' Section, Sukkur and locked up him.
6. It is further submitted that on 11-10-2010, A.S.-I. Ghulam Murtaza Junejo (respondent No,5) registered F.I.R. No,180 of 2010 under section 13-D, Arm Ordinance at police station 'B' Section and in contents of F.I.R. Mentioned the name of Ali Raza Mughal and shown his presence with the absconder accused in Crime No,34 of 2010 namely Abdul Hafeez Rind. It is also stated that the respondent No,7 violated the Criminal Procedure Code as the name of Ali Raza Mughal was neither shown in the F.I.R. No,34 of 2010 nor his name disclosed by the complainant in the said F.I.R. Nor by the prosecution witnesses in their section 161, Cr.P.C. Statements nor even the S.-I.O. Has shown cogent reasons in his letter with material against Ali Raza Mughal but without assigning reason granted remand, which is against the law.
7. Heard the learned counsel for the parties. It is noteworthy to mention here that vide order dated 11-11-2010, on the request of the learned counsel for the petitioner, Mr. Zafar Abbas Bukhari, DIGP, Sukkur was appointed Inquiry Officer to conduct an impartial inquiry in Crime No,180 of 2010 and submit his report in this Court. On 14-12-2010, the inquiry report was submitted and copy was supplied to the learned counsel for the petitioner. The inquiry report shows that the Inquiry Officer recorded the statements of following witnesses:-
(vi) Abdul Rasheed DoudpotaGeneral Secretary, Sarafa Bazar Sukkur (vii)Amanullah Jogi Manager, ABL March Bazar Sukkur (viii)Munir Ahmed PhulpotoSP Investigation Sukkur
(ix) Muhammad Raizwan SoomroDSP/SPO, City Sukkur
(x) SIP Abdul Malik KamangarS.H.O. Police Station 'B' Section Sukkur
(xi) SIP Maqsood Rasool MaharSIO Police Station 'B' Section Sukkur (xii)A.S.-I. Ghulam Murtaza JunejoPolice Station 'B' Section Sukkur
8. The statements of witnesses are also attached with the inquiry report. In the conclusion of inquiry, the Inquiry Officer has held that accused Ali Raza is not innocent and he further observed that after going through the whole exercise, he has no doubt in his mind that police officers namely Rizwan Soomro, D.S.P./S.P.O. City Sukkur, S.I.P. Abdul Malik Kamangar, S.H.O. PS 'B' Section Sukkur and A.S.-I. Ghulam Murtaza of PS 'B'
Section Sukkur have grossly mishandled the case and have turned their success into a mess by playing with law and basic rights of the citizens. They have not only played havoc with the valid and solid case but have given irreparable loss to the main case by spoiling the valuable evidence.
Had they procured the same evidence in a legal manner it would have supported the main case very strongly. They have not only infringed upon the rights of the accused and his family, but also did injustice to the complainant of the case, who had already been deprived of his son and property and in the finding of the inquiry, he concluded that above officers are guilty of twisting the facts and damaging the evidence as envisaged under Article 155(c) and (d) of Police Order, 2002 and misconduct under section 2(c) of the RSO 2000.
9. So far as the statement of Muhammad Kamal Zargar is concerned, it is mentioned in the report that in his statement he simply stated that he is owner of shop in Sarafa Bazar Sukkur and only deals with gold/silver with the members only and not with any outsider but when on the intervention of Muhammad Saeed, President Sarafa Bazar and Abdul Rasheed, General Secretary Sarafa Bazar, he was reminded of his statement before the Union, then he admitted that he purchased 25/26 Tola of gold from Ali Raza from time to time, after the murder of Ghulam Mustafa and paid cash as per the rate. He also admitted that previously Ali Raza never brought gold in this big quantity and just brought in grams. Haji Muhammad Saeed, President Sarafa Bazar, stated before the inquiry officer that Kamal Ahmed Mughal admitted before him and the Union that he purchased gold of worth Rs,8,50,000 from Ali Raza from time to time after the murder, and he never purchased gold from him in such quantity before the murder. Abdul Rashid Doutpota, General Secretary, Sarafa Bazar, Sukkur in his statement deposed that Ali Raza Mughal sold 1 to 3 grams of gold to Kamal before the murder, while afterwards, he sold 2 to 5 Tolas of gold at different times.
Muhammad Rizwan, D.S.P./S.P.O. City Sukkur in his statement denied the allegations of torture on the accused Ali Raza and he further stated that on 20-10-2010 in pursuance of the order of this Court, Ali Raza was produced before the medical board for his medical check up and on 21-10-2010, his medical report was received, which ruled out any torture. According to the inquiry report, SIP Abdul Malik Kamangar stuck to the main version of F.I.R. Except giving twist to the incident of bringing accused Ali Raza to the bank and in view of the CCTV footage, the Inquiry Officer confirmed the presence of Ali Raza in the bank.
10. The learned counsel for the petitioner had previously argued that Ali Raza has been maltreated by the police, therefore, vide order dated 15-10-2010, it was directed that let him be produced before the Medical Superintendent, Civil Hospital, Sukkur for his medical examination and the report be submitted to this Court. Again on 19-10-2010, the same order was repeated, thereafter, his medical examination was conducted and report was submitted in the court on 20-10-2010. In the report, it was mentioned that "no marks of violence were seen all over the body at present". In the same order, the Investigation Officer was restrained not to submit the challan till further orders.
11. During the course of arguments, the learned counsel for the petitioner argued that the Inquiry Officer had not conducted the inquiry properly and in fact he tried to save the police officers and favour the complainant. He further argued that the Inquiry Officer provided shelter to the police functionaries And tried his level best to fix the liability upon the petitioner's son. Ali Raza on' she basis of statements of interested witnesses Haji Muhammad Saeed, President Sarafa. Bazar and Abdul Rashid Doudpota, General Secretary Sarafa Bazar, who were called on the sole wishes of the petitioner. DIGP Sukkur has miserably failed to determine that what offences have been committed by his subordinate staff, who are respondents in the petition. The Inquiry Officer failed to conduct impartial inquiry and just completed the formality of calling the complainant/interested witnesses and giving preference to them without legal substance.
12. The learned counsel further argued that the son of the petitioner has not committed any offence but he has been falsely involved and implicated in the case without any just cause. The petitioner's son has been involved by the police with the collusion of the complainant by adopting coercive tactics and they have committed serious offences in serial, which is evident from the statement of bank manager and CCTV footage and even in the inquiry report the Inquiry Officer has admitted that the police officers have failed to justify their presence with Ali Raza in the bank, therefore all the charges levelled against Ali Raza are with mala fide intention and ulterior motive, therefore in the interest of justice Ali Raza should be released and proceedings against him be quashed.
13. It was further averred that the money which was taken away by the police functionaries from the shop of Ali Raza and the money withdrawn from the bank may also be refunded back to the son of petitioner and D.I.G. Sukkur may be directed to register F.I.R. Of the petitioner and/or her son against the responsible police functionaries and private persons instrumental to the coercive tactics adopted by police functionaries against the petitioner's son including the departmental action.
14. The learned counsel further argued that in exercise of powers vested under Article 199 of the Constitution, this court can quash F.I.R. And proceedings and there is no necessity to approach the trial court by filing appropriate application under section 249-A or 265-K, Cr.P.C. The case was registered with mala fide intention and to cause humiliation, harassment to the petitioner's son and to involve him in criminal case, therefore it is a fit case in which the son of the petitioner Ali Raza may be discharged from the charges levelled against him. In support of his arguments, the learned counsel for the petitioner relied upon the following case-law:-
(1) 2000 SCMR 122 (Miraj Khan v. Gul Ahmed). In this matter, the hon'ble Supreme Court discussed sections 561-A, 249-A and 265-K, Cr.P.C. And held that high court in exceptional cases can exercise jurisdiction under sections 561-A Cr.P.C. Without waiting for trial court to pass orders under sections 249-A or 265-K, Cr.P.C., if the facts of the case so warrant. Main consideration to be kept in view would be, whether the continuance of the proceedings before the trial forum would be futile exercise, wastage of time and abuse of process of court or not. If on the basis of facts admitted and patent on record no offence can be made out, then it would amount to abuse of process of law to allow the prosecution to continue with the trial.
(2) PLD 2002 Karachi 464 (Syed Murad Ali Shah v. Government of Sindh). In this case, the learned divisional bench of this'court held that as per well settled principles laid down by the hon'ble Supreme Court it has been the practice and procedure when it is demonstrated to the High Court that when a complaint, investigation, report or other step either in lodging of an F.I.R. Or prosecution of a criminal case is patently against the provisions of any law or otherwise no case can possibly be made out then this court has been clothed with the jurisdiction to quash the same as no useful purpose would be served to keep the matter lingering on. This in fact amounts to an abuse of the process of a court of law.
(3) 1991 PCr.L.J 9 (Riffat Ali Barq v. S.H.O. Police Station Muzaffarabad). In this matter the learned divisional bench of the Lahore High Court observed that F.I.R. Did not disclose the ingredients requisite to attract criminal liability under section 294, P.P.C. Raiding party had not seen appellant and his female co-accused doing obscene act. Person who had informed police in this regard had not been cited as a witness, therefore the entire case was based on hearsay evidence which was not admissible. Petition filed by appellant before High Court for declaring the registration of criminal case and proceedings in the court to be mala fide, illegal and without lawful authority was not under section 561-A, Cr.P.C. Alone but it was a writ petition read with the provisions of section 561-A, .Cr.P.C. Since there was no tangible evidence against accused, the petition could not have been dismissed by High Court on the technical ground that evidence was yet to be recorded and that interference at that stage would stifle prosecution. No offence was made out against appellant and his co-accused, therefore the proceedings were quashed.
(4) 2009 SCMR 141 (Muhammad Aslam v. District Police Officers, Rawalpindi). In this matter, the hon'ble Supreme Court discussed Article 9 of the Constitution of Pakistan and held that courts have to safeguard the fundamental rights of every citizen and to protect the life and liberty from illegal, unauthorized and mala fide acts of omission or commission by an authority or person. Where the liberty of a citizen is involved, the action initiated by the police when found to be mala fide the court should not hesitate to step in and grant relief to the citizen. In the same judgment, it was further held that in law, nothing warrants that since charge has been framed by the trial court, the proceedings could not be buried by way of quashment. There is no invariable rule of law and it was dependent on the facts of each case whether to allow the proceedings to continue or to nip the same in the bud.
(5) 1993 MLD 832 (Rafique Ahmad v. The State). In this matter, the learned single judge of the Lahore High Court held that the question to be determined in the quashment matters is as to whether the machinery of law was being employed for an operation from which any result in furtherance of justice could accrue. A case which could not possibly succeed if allowed to continue would be an abuse of the process of the court and to quash the same would secure the ends of justice.
(6) 1996 SCMR 24 (Anwar Ahmad Khan v. The State). In this matter, the hon'ble Supreme Court has held that when cognizable case under investigation was under judicial scrutiny by a superior court, it could direct concerned authorities to finalize their reports, within reasonable time High Court while passing such order did not interfere with the investigation in question, but merely required concerned officers to be more alert, vigilant prompt and dutiful. Where investigation was mala fide or without jurisdiction, High Court, in exercise of its constitutional jurisdiction, was competent to correct such proceedings and pass necessary order to ensure justice and fair play. Investigating authorities do not have entire and total authority of running investigation according to their whims.
(7) 1994 SCMR 1283 (Government of Sindh v. Raeesa Farooq). In this matter, the hon'ble Supreme Court has held that where petition under Article 199 is filed challenging the arrest and detention of any person, the High Court will not straightaway refuse to exercise jurisdiction the moment an information is laid that the detenue is involved in any criminal case registered with the police. The High Court has the jurisdiction to examine the facts and information laid before it to determine prima facie that it does not lack bona fides, is not a cooked up or manipulated affair the detenue has not been illegally detained without a proper and legal remand order where it is required and there appear reasonable grounds for believing that the detenue is involved in the crime charged with. If once it is conceded that on receipt of information as supplied the High Court should refuse to exercise its constitutional jurisdiction without examining it, the very provision of the Constitution Article 199(1)(i) conferring power of judicial review will be frustrated. The High Court is competent to examine and satisfy itself that the detenue is not being held in custody without lawful authority or in an unlawful manner. This can be achieved only when the court examines the information, reasons, facts and causes leading to detention.
15.- In response to the arguments, the learned Assistant Advocate General argued that the relief claimed by the petitioner is not allowable under the writ jurisdiction as various questions of facts and law are involved and after submission of inquiry report it is also made clear that the son of the petitioner was not found innocent though the Inquiry Officer has also held responsible to some of the police official but in the inquiry report no clean-slate was given to the petitioner's son. The Inquiry Officer recorded the statements of different witnesses, who have deposed that the son of the petitioner sold the gold in the market to various persons in a substantial amount after the murder of complainant's son, therefore in the constitutional jurisdiction it cannot be decided whether the complainant has lodged the F.I.R. With bona fide intention or mala fide intention. He also argued that before invoking the constitutional jurisdiction of this court, many other remedies are available to the petitioner including filing of application under sections 249-A or 265-K, Cr.P.C.
In the competent court of law but at this stage the F.I.R. Or proceedings cannot be quashed at the whims of the petitioner. In support of his arguments, the learned A.A.-G. Relied upon the following case law:- ' 2006 SCMR 1192 (Haji Sardar Khalid Saleem v. Muhammad Ashraf). In this matter, the hon'ble Supreme Court held that it is settled law that if, prima facie, an offence had been committed, the ordinary course of trial before the court should not be allowed to be deflected by resorting to constitutional jurisdiction of High Court. By accepting constitutional petition, the High Court erred in law to short circuit the normal procedure of law as provided by law while exercising equitable jurisdiction which was not in consonance with the law laid down in the case of Habib Ahmed v.
M.K.G. Scott Christian (PLD 1992 SC 353).
16. The learned counsel for the intervener supported the arguments of the learned A.A.-G. And he argued that the complainant has rightly lodged the F.I.R. Who lost his son and there is ample evidence available on record to connect the petitioner's son with the crime in question, therefore, the proceedings cannot be quashed in the constitutional jurisdiction and proper course for the son of the petitioner is to approach the trial court and file 'appropriate application. The learned counsel further argued that son of the petitioner directly moved bail application in this court, which was dismissed by the learned single judge on 29-11-2010 with the direction to first approach the trial court.
17. We have examined the inquiry report and are of the firm view that in the inquiry report the son of the petitioner was not proved innocent and whatever mentioned against him is the matter of evidence, therefore his guilt or innocence cannot be ascertained or determined at this stage in the constitutional petition. There is no cavil to the well settled proposition of law that this Court in exceptional cases can exercise jurisdiction without waiting for trial court to pass orders under sections 249-A or 265-K, Cr.P.C., if the facts of the case so warrant. Main consideration to be kept in mind would be whether continuance of the proceedings before the trial court would be a futile exercise, wastage of time and abuse of process of court or not and if on the basis of facts admitted and patent on record no offence can be made out then it would amount to abuse of process of law to allow the prosecution-to continue with the trial.
18. Where assumption of jurisdiction is without lawful authority and is apparent on the face of the proceedings, same can be quashed in constitutional jurisdiction. Determination of correctness or falsity of allegation levelled against the son of the petitioner, the determination of his guilt or innocence and the ultimate conclusion regarding his conviction or acquittal is an obligation cast upon the court having jurisdiction to try under the Code of Criminal Procedure on the basis of evidence as may be led during the trial.
19. A resort to provisions of Article 199 of the Constitution seeking quashment of the case is an extraordinary remedy which can be invoked only in extreme circumstances and said provisions can never be exploited as a substitute for the prescribed trial or to decide the question of guilt or innocence of an accused person. 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.
20. The Hon'ble Supreme Court has held in its judgment reported in PLD 1967 SC 317 (Ghulam Muhammad v. Muzammal Khan), that an inherent jurisdiction given by section 561-A, Cr.P.C. Is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievance for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. The High Court should be extremely reluctant to interfere in a case where a competent court has, after examining the evidence adduced before it, come to a view that a prima facie case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence.
21. In another judgment, reported in PLD 1992 SC 353 (A. Habib Ahmed v. M.K.G. Scott Christian), the Hon'ble Supreme Court held that if prima facie the offence had been committed, justice required that it should be enquired into and tried. If the accused are not as a result of the trial found guilty, they have a right to be declared as "honourably acquitted by a competent court". On the other hand, if the evidence against the accused discloses a prima facie case, then "justice clearly requires that the trial should proceed according to law". It was further held that inherent jurisdiction of the High Court is not an alternative or additional jurisdiction. It is only in the interest of justice to redress grievances for which no other procedure is available.
22. The same view was also followed in another judgment repotted in 2006 SCMR 1192 (Haji Sardar Khalid Saleem v. Muhammad Ashraf). At this juncture we would also like to rely on the case reported in PLD 1994 SC 486 (Maritime Security Agency, Karachi v. Muhammad Saleem Khan), in which, the Hon'ble Supreme Court has held that if quashment of a criminal case is sought on the ground that the charge is groundless or that there is no probability of the accused being convicted of an offence, which questions cannot be decided without appraisal of the evidence or the material placed on record or where the question is, whether the facts as alleged in the F.I.R. Or in a direct complaint constitute an offence or not, the High Court should insist upon that the above questions should be agitated before the trial court under sections 249-A, or 265-K, Cr.P.C. As the case may be or through any other permissible mode before invoking the jurisdiction of the High Court, however, if the quashment of criminal proceedings is sought on the ground that the proceedings are ex facie without jurisdiction and continuation of the same will constitute abuse of the process of the court, the High Court will entertain proceedings without insisting upon that a party should first approach the trial court.
23. The purpose of quashing an F.I.R. In exercise of constitutional jurisdiction being primarily to save a person from the rigors of an unjustified investigation and if investigation of a criminal case had already been finalized, the High Court would generally be slow in interfering in the matter at such a stage as in case of submission of challan before the court of competent jurisdiction, many remedies would become available to the affected persons. If criminal liability is spelt out from the facts and circumstances of a particular case, accused can be trie'd upon criminal charge and in such a situation, quashment of F.I.R. Tantamounts to throttling the investigation which is not permissible in law. Neither this Court can resolve the factual controversy in constitutional jurisdiction nor can assume the role of an investigation officer the statements of the President and General Secretary of the Sarnia Bazar, it is clearly mentioned that son of the petitioner was found involved in selling substantial quantity of gold to the different buyers after the murder of the son of the complainant and he was not found innocent in the inquiry.
24. Keeping in view the various statements made in the inquiry proceedings, we cannot determine in the constitutional jurisdiction as to whether the son of the petitioner Ali Raza is innocent or he has been falsely implicated in the case or not. Much emphasis has been made by the learned counsel for the petitioner on relying the C.C.T.V footage that Ali Raza was brought to the bank for encashment of the cheque. It cannot be lost sight that the witness appeared before the inquiry officer deposed contrary and they confirmed the sale of gold in substantial quantity by Ali Raza after the incident of murder. Inquiry officer also recorded the statement of Muhammad Jamal, elder son of the petitioner and asked the specific question regarding their monthly income and household expenses. Inquiry officer further asked to Muhammad Jamal as to why they did not open the bank account earlier than June 2010 which was after the murder of Ghulam Mustufa, to which he replied that they were using it in sale/purchase which was got stopped by their uncle after the murder of their cousin. In the report, the Inquiry Officer has also fixed the responsibility and to some extent he has also observed that some of the police officials who are properly named in the report were found responsible to mishandle the case and he has already suggested that proper action may be taken against them in accordance with the Police Order 2002 including the disciplinary proceedings but this particular aspect is not sufficient to declare the son of the petitioner innocent at this point in time, unless all-inclusive material is placed before the trial court and report under section 173, Cr.P.C. Is submitted for further proceedings.
25. On 11th November, 2010, we had tentatively observed on the basis of photographs produced in the court that Ali Raza was brought to the bank by police functionaries and amount was withdrawn but now after hearing the arguments and examining the inquiry report produced in the court, we are of the firm view that lone fact that Ali Raza was brought to bank for withdrawal of money cannot be treated a convincing ground for quashment of a murder case in presence of other incriminating material which is to be thrashed out and proved during the trial before the competent court. We have also examined section 537, Cr.P.C., which, inter alia, provides that no finding, sentence, order passed by a court of competent jurisdiction shall be reversed or altered on account of any error, omission or irregularity in the complaint, report by Police Officer under section, 173, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or any inquiry or other proceedings under the Code. During the trial, the trial court has to examine the entire record and the evidence produced before it to determine the guilt or innocence of petitioner's son. The inquiry officer apparently found Ali Raza involved in the case and he concluded as under:-- "However in my personal opinion, I strongly feel that the accused Ali Raza is not innocent, all fingers point toward his guilt. It is for the court of law to weigh the legality and credibility of the evidence procured by the police, though in a wrongful manner and by twisting the facts in a horrible way"
' It is however, clarified that if after taking into account the entire evidence or at any stage of proceedings, the petitioner's son Ali Raza is found innocent and acquitted from the charge, the respondents Nos.1 and 9 shall initiate appropriate action against the delinquent officers as proposed in the inquiry report.
26. We are also of the view that instead of availing proper remedy which is undoubtedly provided under the law, the petitioner has directly moved this constitutional petition in which various relief(s) have been claimed including the refund of amount. All these controversial facts cannot be decided in the writ jurisdiction.
27. The USB provided by the bank official to the police has become a part of investigation. For the purposes of investigation in Crime No,180 of 2010, we have already ordered that some independent officer will be appointed by the D.I.G. Sukkur for investigating the matter and he will submit the report to the trial court in the said crime. The letter dated 11-12-2010 submitted by the D.I.G. Of Police Sukkur zone shows that in compliance of this court order, he has already conveyed to Additional IGP. Investigation a request to transfer the case from District Police Officer Sukkur to AIG Crime and Investigation Sukkur for conducting impartial investigation of the case. Whether the amount withdrawn from the bank was foisted upon the accused arrested in F.I.R. No,180 of 2010 or not or whether the F.I.R. Was lodged against Ali Raza and others after withdrawing the amount from bank, all these important aspects shall be considered by the impartial Investigation Officer.
28. The case-law relied upon by the learned counsel for the petitioner are distinguishable to the facts and circumstances of the present case and in some of the cases on the face of it no offence was made out, therefore the proceedings were quashed while in few cases proceedings were quashed on the ground that the same were instituted in utter violation of some law.
29. After adverting to the contentions of the learned counsel appearing for the parties and examining the material available on record, we have no hesitation to hold that this petition involves numerous controversial facts and runs into minute details which cannot be decided in writ jurisdiction. The petition is dismissed accordingly.
30. We also direct the Investigation Officer to submit Report/challan under section 173 of Cr.P.C. In the competent court keeping in view the investigation carried out by some independent officer as already directed by this court vide order dated 11-11-2010.