' WAQAR AHMAD SETH, J.---This order shall also dispose of Quashment Petition No,79-P of 2012 as exactly similar question of law and facts are involved.
2. Impugned herein is the order dated 7-3-2012 passed by Judge Anti-Terrorism Court, Peshawar whereby while acquitting the accused involved in case F.I.R. No,713 dated 10-8-2011 under sections 365-A, 506, 34, P.P.C. Of Police Station, Paharipura, Peshawar, the petitioner has been given notice under section 27 of the Anti-Terrorism Act, 1997 and vide order dated 26-3-2012 after obtaining bail bonds the case has been adjourned for framing of charge.
3. Relevant facts of this quashment petition under section 561-A, Cr.P.C. Are that as a result of application under section 22-A, Cr.P.C. Before the Court of learned ASJ, Peshawar murasila was drafted on 10-8-2011 against the nominated accused therein on the ground that on 23-5-2011 they had abducted one Hazrat Shah for ransom. In this regard, investigation under section 156(3) was conducted by the petitioner as Investigating Officer Police Station Faqirabad, Peshawar. The petitioner started investigation in skilful manner and on completion of investigation the file was handed over to the SHO concerned who submitted challan and the trial of the case was commenced by the learned Anti-Terrorism Court.
4. Upon conclusion of trial, the accused were acquitted but vide order dated 3-7-2012 notice under section 27 Anti-Terrorism Act 1997 was given to the petitioner highlighting therein certain flaws in the conduct of the investigation of the case and reply was asked from the present petitioner.
5. In the show-cause notice following omissions/commissions in investigation were highlighted:--
(i) That initially report was made about abduction of Hazrat Shah by accused on ground of money dispute between them and complainant Iftikhar Khan.
(ii) That statement recorded under section 164, Cr.P.C. By complainant do contain the aforesaid version recorded on 23-8-2011 with addition of introduction of new plea of payment of ransom amount of Rs,10 lac to one Najmud Din with a promise of further payment of 5 lac at the time of release of abductee.
(iii) Being I.O. You were under obligation at least to demand from complainant the evidence of aforesaid new plea when earlier plea was of money dispute but you failed to abide by your aforesaid obligation and proceeded with the case as abduction for ransom;
(iv) That you have prepared recovery memo of alleged abductee showing his recovery on 19-8- 2011 from Railway Line at pointation of acquitted accused Muhammad Anwar and Hizbullah Exh. P.
W. 3/1 and has confirmed the aforesaid fact on oath before court that the recovery of abductee has taken place after evening time appearing as P.W.4.
(v) That you have also prepared an application Exh.P.W.4/2 on 19-8-2011 producing the said abductee along with complainant for recording statement under section 164, Cr. P. C. Before the court of learned Judge Ibrahim Khan ATC Peshawar. This application of you contradict your aforesaid version and appears that you have either prepared aforesaid fake judicial paper to strengthen the case of complainant or to damage prosecution case in order to give benefit to accused and both the objectives on your part go in breach of your duties;
(vi) That statement on oath before this court confirming the aforesaid version of recovery also appears to be false statement made in court which is an offence under P.P.C. In addition to breac of your duty.
6. Accordingly, petitioner appeared on 10-3-2012 before the learned Anti-Terrorism Court, he submitted his reply which was found unsatisfactory, resultantly he was directed to submit bail bonds in the sum of Rs,100,000 with one surety in the like amount to the satisfaction of the said court and the matter was adjourned to 6-4-2012 for framing of charge and submitting surety bonds, hence this quashment petition.
7. Learned counsel for the petitioner contended that the impugned order vide which proceedings are initiated against the petitioner under section 27, A.T.A., 1997 by the learned ATC, Peshawar are against facts. And material on record besides being against the law on the subject, thus the same are liable to be quashed; that the learned court of ATC is not vested with the power to initiate such like proceedings against the petitioner by making him accused; that the observations that petitioner has not been able to properly investigate the case and has also failed to discharge his duties as per law are misconceived and unwarranted and being so are not sustainable in the eyes of law; that the investigation as conducted by the petitioner as an Investigating Officer is in accordance with the law and circumstances from all possible angles and there is no flaw in the said investigation, therefore, action against the petitioner under section 27, A.T.A. Is highly unjustified; that even otherwise, if some mistake or omission was committed by the prosecution when petitioner handed over the file to the concerned SHO who submitted the challan, for that the petitioner cannot be held responsible; that this court do possess with the powers to quash the proceedings when on the face of it is established that no mens rea exist on the part of the petitioner.
8. I have heard the arguments of learned counsel for the petitioner. The basic question which needs determination would be as to whether the provisions under section 561-A, Cr.P.C., the proceedings could be quashed on its initial stage or otherwise.
9. According to section 27, of ATA, 1997 the court of Anti-Terrorism do possess the powers to punish the delinquent officer, when come to the conclusion during the course of or at the conclusion of trial that the Investigating Officer has failed to carry out the investigation properly or diligently or has failed to pursue the case properly and in breach of his duty. The omissions/commissions as mentioned in notice under section 27 dated 7-3-2012 of the Act ibid dated 7-3-2012 seems to be factual in nature for which evidence is to be recorded and for that matter the charge will be framed and the petitioner will be at liberty to produce the evidence and rig-out of the charges.
10. Even otherwise, there is an alternate remedy at the evidence. Stage in the shape of section 249- A or 265-K, Cr.P.C. It is well-settled by now that the superior courts should not involve themselves into investigation of disputed question of facts which necessitate taking of evidence. This can more appropriately be done in the ordinary by the trial court. This extraordinary jurisdiction .Is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate inquiry into complicated or disputed facts. Controverted question of facts, adjudication on which is possible only after obtaining all type of evidence empower and possession of the parties can be determined only by court having trial Court jurisdiction. In the instant case, it is observed that petitioner was an Investigating Officer and the Investigating Officer has certain responsibilities on behalf of prosecution and the learned trial Court pointed out very D material issues regarding omissions/commissions committed by the petitioner which are to be thrashed out, due to which the accused in the ID case go acquitted.
11. The general practice of the High Court which is well entrenched seems to be that no proceedings should be quashed ordinarily in view of the powers as conferred under section 561-A, Cr.P.C, unless the trial court exercised its power under section 249-A or for that matter 265-K, Cr.P.C. The learned trial court has taken cognizance under section 27 of the Act, 1997 on his own observations during the trial which cannot be taken into an exception at this stage by this Court as the trial Court do possess with the powers and there is no allegations of mala fide or ill-will.
12. In the light of what has been discussed herein above and in view of the various complicated questions of facts, availability of adequate remedies at premature stage no interference under section 561-A, Cr.P.C. Is warranted. The petition is dismissed in limine along with Criminal Miscellaneous with no order as to costs.