Through instant writ petition, petitioner seeks quashment of FIR No, 531 dated 27-10-2011 u/S. 406 PPC, registered at P.S Kohsar, on the grounds that case against the petitioner had been got registered with the connivance of local police malafidely just to blackmail and harass the petitioner and his family members. As per contents of FIR, the complainant had invested an amount of Rs,2,09,96,907/- in the business of petitioner who is running a business in the name and style of "Bin Masud Traders" for supply of food and non-food items. It has further been alleged in the FIR that inspite of promise of heavy profit, he did not pay any amount. That after registration of case petitioner applied for his pre-arrest bail which is pending in the Court of learned ASJ, Islamabad.
2. The learned counsel for the petitioner argued that complainant is brother-in-law of petitioner and wife of petitioner namely Faiza Hassan has filed a suit for dissolution of marriage before Judge Family Court, Rawalpindi whereas petitioner has also filed a suit for restitution of conjugal rights before Judge Family Court, Lahore and both the suits are pending before competent Court of law, therefore, due to matrimonial dispute between the parties, instant FIR has been lodged as a counter blast of above said litigation. That, the dispute between the parties is purely of civil nature and prior to registration of FIR, petitioner filed a suit for rendition of accounts and permanent injunction which is pending in the Court of Senior Civil Judge, Lahore. Instant FIR is a counter blast of civil suit which is pending before competent Court of law. That from the contents of FIR, no offence u/S. 406 PPC is made out because disputed amount/money was not given to petitioner on trust but was invested in the business, therefore, does not come within the definition of entrustment of property.
3. The learned counsel for petitioner prayed that, in view of above mentioned circumstances, no incriminating material has been brought on record to connect the petitioner with the commission of alleged offence, therefore, FIR may be quashed.
4. On the other hand, learned counsel for complainant submits that in view of law laid down in case of COL SHAH SADIQ, reported as 2006 SCM R 276, High Court lacks jurisdiction to quash the FIR on any of the grounds taken by the petitioner Learned counsel further submits that due to close relationship, trust was deposed upon the petitioner to invest the amount in the running business carried out by him but he failed to satisfy that amount provided for business purpose was ever invested in the business. The learned counsel for the complainant admitted the matrimonial dispute between the spouses, pendency of family suits as well as suit for rendition of accounts with regard to investment made by the complainant.
5. The learned standing counsel supported the contentions of learned counsel for complainant and adds that since petitioner persuaded the complainant of the case in the office situated at Islamabad, therefore, ICT police had the jurisdiction to register the case.
6. First aspect which this Court has to examine is that, whether in the sleeves any power, discretion, mandate, jurisdiction, and authority to quash any FIR is vested or not? It is well settled, that High Court being Constitutional Institution is savior and protector of the rights of the citizens. Article 199 of the Constitution showers mandate upon the High Court to issue writs of all kinds, for convenience sake Article 199 of the Constitution of Islamic Republic of Pakistan is being supplied, which reads as under:--
199. Jurisdiction of High Court.--(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,--
(a) on the application of any aggrieved party, make an order-- (i)directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or (ii)declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a province or a local authority has been done or taken without lawful authority and is of no legal effect, or
(b) On the application of any person, make an order--
(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it, so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner: or
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law, he claims to hold that office; or
(c) On the application of any aggrieved person. make an order giving such directions to any parson or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter-I of Part-II.
7. Reading of above, makes it clear that discretion to declare any act of the police officials, to be without lawful authority is available to the High Court. Now, question arises that in which cases declaration can be made that registration of FIR is besides the law, making the same liable to quashment? Answer to this, has been provided by the Hon'ble Supreme Court through different authoritative pronouncements. Reference is being made to 1993 SCM R 71 and 2000 SCM R 122, 2012 SCM R 94.
8. Judgments on the issue provide following situations wherein discretion of exercising the authority of quashment of FIR has been approved;
(i) Registration of FIR by Police/Authorities having no jurisdiction to register the same.
(ii) From the admitted contents of FIR, no offence is constituted; (iii)From contents of FIR matter purely is of civil nature.
Even in the judgments through which exercise of such discretion has been dis-approved "door of extraordinary circumstance" has been kept open. Guidance hi this regard has been borrowed from 1996 SCM R 186, 2006 SCM R 276 & PLJ 2011 SC 1932.
9. The contents of FIR impugned before this Court, itself show that it is a case of extraordinary circumstance for the reason that a business dispute arisen out of investments made in the running business of the petitioner and profit whereof has been tried to be settled with concealment of fact, that family and civil suits are pending before the Court of competent jurisdiction. It is an admitted fact that civil suit regarding rendition of accounts is about same transaction regarding which impugned FIR has been registered. Contents of FIR also suggest that primarily it is an issue of rendition of accounts as according to complainant himself, he received payment of Rs,20,00,000/- out of investment made and profit earned.
10. Unfortunately, trend to settle the civil disputes by exercising pressure of criminal proceedings is on high, which is nothing but exploitation. The High Court being custodian of the fundamental rights of the citizens is under obligation to provide shield against any invasion made on the guaranteed constitutional rights and protect the subject from discrimination, exploitation, colourable exercise of authority, bolted actions, mala fide and stinking proceedings.
Thus for the foregoing reasons, instant petition is allowed. Impugned FIR is declared to be illegal, unlawful, unprecedented, sham, result of colourable exercise of authority, an abuse of process of law, tainted with mala fide, ulterior motives, a device of exploitation without jurisdiction and outcome of arbitrary exercise of authority, and same is hereby quashed.