RAJA SAEED AKRAM KHAN, J. --- This appeal is directed against the order passed by the Shariat Court on 22.2.2012, whereby the Criminal Petition No, 112 of 2011, for quashment of F.I.R. No, 450 of 2011 filed by the respondents, herein, is accepted and the proceedings against the accused- respondents, herein, were quashed.
2. The summary of the case is that the complainant, Muhammad Maqsood, in an injured state lodged an F.I.R. at Police Post, Tattapani on 15.12.2011 stating therein that at 2.30 p.m., he was sitting in the shop of Sajid alongwith Waqas and Muhammad Wazir, when an altercation started between him and Zohaib alias Billa. Thereafter, Zohaib left but the complainant remained seated there. After a lot of time, Shakeel came there and asked the complainant to get into the shop of Sajid and an altercation took place between them. Meanwhile, the accused-respondents launched an attack upon him and severely injured him. The occurrence was stated to be witnessed by Waqas son of Aziz, Nasim son of Azam and other people from the bazaar, who came to rescue him. The motive behind the occurrence was stated to be a previous enmity between the parties.
3. On this report, a case was registered under Sections 337-F(i) and 337-F(vi), A.P.C., against the accused-respondents and the complainant was also medically examined twice. The matter was under investigation, when an application under Section 561-A, Cr.P.C. was moved before the Shariat Court for quashment of F.I.R. After hearing the learned counsel for the parties, the learned Shariat Court vide its order dated 22.2.2012 quashed the proceedings pending against the accused- respondents. This order of the High Court which is the subject-matter of this appeal.
4. Sheikh Masood Iqbal, Advocate, the learned counsel for the complainant-appellant, has argued that the matter was still at investigation stage, therefore, the. Shariat Court was not justified to exercise the power under Section 561-A, Cr.P.C., while quashing F.I.R. He argued that the accused- respondents were duly nominated in the F.! 71. which was promptly lodged and the occurrence took pace - the presence of the eye-witnesses, who duly supported the prosecution case. He averred that the learned Shariat Court cannot take the role of investigation and the investigation cannot be stopped, which amounts to encroach into the legal process. He contended that the proper course was to produce the evidence in support of their defence before the Investigating Agency. He further argued that the Shariat Court has committed a gross illegality while passing the impugned order.
Even otherwise, no fair opportunity of hearing was provided to the complainant-appellant and he was condemned unheard. He lastly armed that the complainant-appellant was seriously injured in the occurrence and was also medically examined twice. The medical report also supported the version of the complainant-appellant. He submitted that this important aspect of the case has not been taken into consideration by the Shariat Court while passing the impugned order.
5. On the other hand, Mirza Abdul Azia Rattalvi, Advocate, the learned counsel for the accused- respondents, has strongly supported the impugned order of the Shariat Court while arguing that the same is perfect and legal, therefore, no interference is called for by this Court. He argued that all the prosecution witnesses did not support the prosecution version, therefore, it makes the whole story doubtful and the trial investigation in such-like case would be a futile exercise, therefore, the Shariat Court has rightly exercised inherent powers while quashing F.I.R.
6. We have considered the arguments of both the learned counsel for the parties at length and also perused the record made available. The occurrence took place on 15.12.2011 at 12:30 p.m., in the result of which the complainant-appellant sustained injuries and he was also medically examined twice. The matter was reported to the Police Post, Tattapani on which the law came into motion.
The matter was still under investigation when the accused-respondent moved an application under Section 561-A, Cr.P.C., before the Shariat Court of Azad Jammu and Kashmir on which the proceedings pending before the Investigating Officer were quashed. It is evident from the record that no such evidence came on the record from the accused side on the basis of which it could be ascertained by the Investigating Officer that no case is made out as the matter was at the stage of investigation. It is settled principle of law that the quashment of is not warranted at the investigation stage. In the present case, no such eventuality of quashment of F.I.R. emerged.
Therefore, in our estimation at this stage the application under Section 561-A, Cr.P.C. was pre- mature. There is no cavil with the proposition that if a prima facie case is made out, the proper course is to investigate the matter and both the parties should be provided the fair opportunity to place their point of view before the Investigating Officer and after calculating the evidence provided by both the parties, if the Investigating Officer comes to the conclusion that no case is made out, then he is fully, competent to recommend for the cancellation, of the case. Even otherwise, if the challan is before the Court , of competent jurisdiction, the new situation emerges, then the accused has more than one remedy to move an application under Sections 249-A and 265-K, Cr.P.C., as the case may be, before the Trial Court seeking the acquittal but in the present case, no such occasion arose and the Shariat Court, without keeping in mind the principle laid down by the Superior Courts on ' the subject, has quashed the proceedings, whereas, no such proceedings were started as no Court has taken the cognizance of the offence and the matter was still before the Investigating Officer. -Such-like situation arose in a recent case titled Hamad Tariq and others v. Mohsin Iqbal (Criminal Appeal No, 104 of 2010, decided on 22.3.2013) in which this Court has observed as under:--- "9. So far as the question whether the High Court is competent to quash F.I.R. or not, is concerned, it may be observed 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 the Constitutional jurisdiction of the High Court. ...........
The Supreme Court of Pakistan, while dealing with Article 199 of the Constitution of Pakistan in a case titled Col. Shah Sadiq v. Muhammad Ashiq and others [2006 SCM R 276] observed as under:-- - "6. In case the contents of the writ petition and parawise comments alongwith the aforesaid facts mentioned in chronological order are put in juxtaposition then it brings the case of respondents Nos. 1 to 3 in the area of disputed questions of fact. It is a settled proposition of law that High Court has no jurisdiction to resolve the disputed/ question of fact in Constitutional jurisdiction as the 10v laid down by this Court.
It was further observed in the above-referred case as under:--- "7. It is also a settled proposition of law that 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 of High Court. By accepting the Constitutional petition the High Court erred in law to short circuit the normal procedure of law as provided under Cr.P.C. and police rules while exercising equitable jurisdiction which is not in consonance with the law laid down by this Court in A. Habib Ahmad v. M.K.G. Scott Christian PLD 1992 SC 353. The learned High Court had quashed the F.I.R. in such a manner as if the respondent had filed an appeal before the High Court against order passed by Trial Court. The learned High Court had no jurisdiction to quash the impugned F.I.R. by appreciation of the documents produced by the parties without providing chance to cross- examine or confronting the documents in question. Respondents had alternative remedy to raise objection at the time of framing the charge against them by the Trial Court or at the time of final disposal of the trial after recording the evidence. Even otherwise, respondents have more than one alternative remedies before the Trial Court under the Cr.P.C. i,e, Sections 265-K, 249-A or to approach the concerned Magistrate for cancellation of the case under provisions of Cr.P.C."
While relying upon some previously pronounced judgments, the Supreme Court of Pakistan, in the above-referred case further observed:--- "8. The learned High Court erred in law in accepting Constitutional petition by quashing the F.I.R. at the initial stage which was not in consonance with the law laid down by this Court
9. According to provisions of Cr.PC. it is for the Investigating Officer to collect all the facts connected with the commission of offence and if he finds that no offence is committed, he may submit a report under Section 173, Cr.P.C. to the Allaqa Magistrate. On the other hand, if on the basis of his investigation he is of the opinion that the offence has in fact been committed, he has to submit report accordingly. However, the report of the Investigating Officer cannot be the evidence in the case. The investigation is held with a view to ascertaining whether or not an offence has been committed. The inquiry, or trial, as the case may be has to be conducted by the Magistrate. If the police is restrained from investigating the matter, their statutory duty, it will in our opinion be tantamount to acting against the law as held in Kh. Nazir Ahmad's case AIR 1945 PC p.
18. The relevant observation is as follows:--- 'Just as it is essential that everyone 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 the matters which are within their province and into which the law imposes upon them-the duty of enquiry. In India as has been shown there is a statutory right on the part of the .police under Sections 154 and 156 to investigate the circumstances of an alleged cognizable crime without requiring 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 under Section 561-A. The functions of the judiciary and the police complementary not overlapping and the combination of liberty with a due observances 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 direction- in the nature of habeas corpus. In such a case as the present, however, the 4.-Court's functions begin when a charge is ' preferred before it and not until then.'
Again in paragraph 11 of the above-referred judgment it was held as under:---.
"11. The question of law have also been considered by this Court in Kh. Farooq karim's case PLD 1976 SC 461 and laid down the following It is well-settled that the inherent jurisdiction of the High Court under Section 561-A, Cr.P.C. is niether alterative nor additional in its clviracter-anand is to be rarely invoked only in the interest of justice so , as to seek redress of grievances for which no other procedure is available and that the provision should not be Used to abstruct or divert the ordinary course of criminal procedure.
Reference may be made in this regard to this Court's judgment in Ghulam Muhammad PLD 1967 SC
317. The same view was reiterated by this Court in Shahnaz Beguni's case PLD 1971 SC 677. It was observed in the case of Ghulam Muhammad v. Muzammal Khan. This Court had occasion to point out that the power given by Section 561A; Cr.P.C. can certainly not be utilized as to interpret or divert the ordinary course of criminal procedure as laid down in procedural statute.'
In paragraphs 18 and 20 of the judgment referred to above, the following observations were made:--- "18. No/doubt, exercise of the jurisdiction under Article 199 of the Constitution is discretionary with the High Court but according to the principle laid down by the superior Courts, the discretionary powers must be exercised in good faith, fatly, justly and reasonably having regard to all relevant circumstances. Examining the case of the petitioner in the light of above principles, we are of the considered, opinion that the High Court had not only exercised its jurisdiction improperly but also scrutinized the documents which were not proved and allowed the petitioner to rebut the same in terms of the provisions of Qanun-e-Shahadat Order, 1984.
20. It is pertinent to mention here that established practice before the creation of country was that learned High Courts were very reluctant to quash the proceedings under Constitutional jurisdiction.
The object and reason behind this practice was that the High Courts had to quash the proceedings summarily which would create chaos due to the following reasons:---
(i) All the procedure and authorities prescribed under Cr.P.C. would become redundant.
(ii) To interfere in the sphere allotted to the executive organ.
(iii) There is every likelihood of injustice in a summary disposal.
(iv) The cases are quashed at initial stages then it would create law and order situation as the people may resort to taking revenge from the opposite party.
(v) Deviation from the past practice is always dangerous.
(vi)Superior Courts always keep judicial restraint in view of Article 4 of the Constitution read with Article 5(2) of the Constitution."
Similarly in a case reported as Brig. Imtiaz Ahmed v. Government of Pakistan through Secretary, Interior Division, Islamabad & 2 others [1994 SCM R 2142], wherein it was observed as under:--- "14. The starting point of the examination of the legal questions canvassed by the petitioner's counsel must be the important fact that the stage at which the petitioner thought it proper to invoke the High Court's jurisdiction under Article 199 of the Constitution was the stage of registration of criminal cases against him. The effect of the registration of a case is to set in train an investigation by the police in accordance with law.
In another case reported as Ahmed Saeed v. The State and another [1996 SCM R 186], it was observed as under:-- "3. We find that the investigation was not complete and no challan had been submitted in the Court when petition for quashment of the F.I.R. was filed in the High Court. The High Court, under its inherent powers, may quash judicial proceedings, if it was of the view that the proceedings amount to an abuse of the process of Court. Since no proceedings were pending in the Court by the time the quashment petition was filed in the High Court, the question of preventing the abuse of process of any Court did not arise in this case. A plain reading of Section 561-A, Cr.P.C. shows that nothing in the Criminal Procedure Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under the Criminal Procedure Code, or to prevent abuse of process of any Court or otherwise to secure the ends of justice. In the instant case neither any order was made by any Court nor was any process issued by any Court. So, the question of making such orders as may be necessary to give effect to any order under the Criminal Procedure Code or to prevent abuse of process of any Court does not arise. We are afraid that the High Court under Section 561-A, Cr.P.C. could not quash F.I.R. on the ground of mala fide or on the ground that F.I.R. discloses civil liability.
Similarly in a case reported as Muhammad Mansha v. Station House Officer, Police Station City, Chiniot, District Jhang and others [PLD 2006 SC 598], wherein it was observed as under:---
5. This Court has been repeatedly reminding all concerned that determination of the correctness or falsity of the allegations levelled. against an accused person; the consequent determination of the guilt or innocence of such an accused person and the ultimate conclusion regarding his conviction or acquittal, was an obligation cast on the Court prescribed by the Code of Criminal Procedure for the purpose on the basis of legal evidence led at the trial after a proper opportunity to both the parties to plead their causes. It is a principle too well-established by now that a resort to the provisions of Section 561-A, Cr.P.C. or to the provisions of Article 199 of the Constitution seeking quashment of a criminal case was an extraordinary remedy which could be invoked only in extraordinary circumstances and the saki \provisions could never be exploited as a substitute for the prescribed trial or to decide the question of guilt or innocence of an accused Person on the 'basis of material which was not admissible in terms of Qanun-e-Shahadat Order of 1984.
6. No such extraordinary circumstances could be indicated to us which could have permitted, the learned High Court to deviate from the normal I course of law and to quash the F.I.R by exercising the extraordinary Constitutional , remedy under Article 199 of the Constitution.
7. Secondly as has been noticed above, what had weighed with the learned High Court in so doing, on merits, was a report allegedly submitted by one Muhammad Akram, S,I. of Police Station City Chiniot which report had been made by him in pursuance of an order of the learned Sessions Judge under Section 22- A of the Cr.P.C. in pursuance of an application made to him seeking registration of the case. By no stretch of imagination could such a report be held to be legal evidence at a trial and at the most what the either party could have done at the trial was to produce the Said Muhammad Akram, S.I. as a witness either of The prosecution or of the defence, who could then have been subjected to cross-examination which obviously was not done and could not have been done through a summary resolution of the issue pursuant to a writ petition filed in the High Court. The learned High Court was thus in error in his connection, firstly, because the said report was not legal evidence and was in fact not even admissible in evidence being opinion of a person who was not an expert and secondly because no evidence was available with His Lordship regarding the hotly contested question of prosecution and dispossession vis-a-vis.
8. Similar was the position of an alleged report of Local Commission submitted in a civil suit pending between the parties. Suffice it again to say that such a report could not be acted upon without an opportunity to the parties to raise 'objections thereto in accordance with law and in any case such a report could not be considered as evidence in a criminal trial unless the same was brought on record at such a trial in accordance with law.
9. Having thus examined all aspects of the matter we find firstly, that no extraordinary circumstances existed which could have permitted the learned High Court to make a departure from the normal mandatory procedure prescribed by law for trial of cases and, secondly, that the material which had weighed with the learned High .Court in reaching the impugned conclusion was no material in the eyes of law which could have been used to determine that guilt or innocence of an accused-person."
Likewise, in another case reported as Chaudhary Munir v. Mst. Surriya and others [PLD 2007 SC 189], it was observed as under:--- "14. We are, however, of the considered view formed after having gone through almost the entire case-law on the subject that the powers as conferred upon the High Court under Section 561-A, Cr.P.C. are required to be exercised in exceptional cases where it is satisfied that continuation of proceedings complained of would amount to gross abuse of process of Court or that it is absolutely necessary to ---exercise inherent powers to secure the ends of justice. The powers as conferred upon High Court in Section 561-A, Cr.P.C. being extraordinary in nature must be exercised sparingly with utmost care and caution and it should not be exercised in casual and cursory manner because inherent jurisdiction as conferred upon the High Court pursuant to the provision as enumerated in Section 561-A, Cr.P.C. are neither 'alternative' nor 'additional' in its character and is to be rarely invoked only in the interest of justice so as to seek redres of grievances for which no other procedure is available and that the provisions should not be used to obstruct or divert the ordinary course of criminal procedure."
In another case reported as Hamid Nawaz v. Station House Officer of Police Station Mitha Tiwana, District Khushab [2008 P.Cr.L.J. 941], it was observed as under:--- "4. After hearing the learned counsel for the petitioner and going through the documents appended with this petition it has been observed by me that the petitioner and his co-accused stand specifically nominated in the F.I.R. and definite allegations have been levelled against them therein. If such allegations are accepted as correct at their face value then the same prima facie disclose commission of some cognizable offences. In these circumstances the local police had no option but to register the impugned F.I.R. and reference in this respect may be made to the case of Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539. The allegations levelled against the petitioner and his co-accused in the impugned F.I.R. are purely factual in nature and the petitioner's rebuttal of such allegations advanced by the learned counsel for the petitioner also necessarily require holding by this Court in the present summary proceedings under Article 199 of the Constitution. The impugned F.I.R. is still, at its investigation stage. It is a statutory duty of the police to investigate a crime reported to it and this Court would not like to scuttle or stifle the said duty of the police at such a premature stage."
7. As we have observed above that the abashment is not warranted at the investigation stage, therefore, we are of the consistent view that the order of the Shariat Court is patently illegal and has been passed without due application of mind which is not sustainable in the eye of law.
Resultantly, we are inclined to accept this appeal and while setting aside the judgment of the Shariat Court, we direct the SHO Police Station, Tattapani, Tehsil and District Kotli to complete the investigation and proceed strictly in accordance with law.