MOHAMMAD AZAM KHAN, CJ. --- The appellant filed an application before the Superintendent of Police, Kotli against Muhammad Younas s/o Sultan, Muhammad Yousaf s/o Hassan Din, respondents No. 1 and 2, Muhammad Ilyas s/o Iqbal, Aasi s/o Khadim Hussain, Manazar s/o Sabir, caste Jatt, residents of village Manjwal Domanda, Tehsil Khuiratta, Rayasat Hussain s/o Muhammad Hafeez, resident of Fatehpur Vehari, to the effect that there is a litigation over the land between the parties in the Civil Court. He has cultivated maize crop in survey No. 1460. On the intervening nigh of 16th and 17th September, 2010, the afore-mentioned persons entered in the land and after cutting have taken away the maize crop wroth around fifteen/sixteen thousand rupees.
He has moved an application in the Police Station Khuiratta but the local police has not registered the case. The accused have committed the crime in consultation with and on behest of Rayasat Hussain. The Superintendent of Police, Kotli, on 22.9.2010 forwarded the application to SHO for necessary proceedings and also ordered to inform about the action taken within three days. After receiving the application, the SHO Police Station Khuiratta registered a case against the respondents under Sections 447, 109, A.P.C. And 14, E.H.A; on 28.9.2010. The accused respondents secured bail before arrest from Additional District Criminal Court Sehnsa, camp Kotli, which was confirmed on 20.1.2011.
2. Respondents No. 1 and 2, Muhammad Younas and Muhammad Yousaf, filed an application under Section 561-A, Cr.P.C. For quashment of F.I.R. In the Shariat Court of Azad Jammu and Kashmir; A learned single Judge in the Shariat Court vide impugned judgment dated 30.4.2011 quashed F.I.R.
No. 144 of 2010. Hence this appeal.
3. Mr. Raza Ali Khan, the learned counsel for the appellant, while arguing on behalf of the appellant/complainant, submitted that the judgment of the Shariat Court is against law and provisions of Cr.P.C. From the contents of application a cognizable offence appears to have been committed by the accused respondents. The case was at investigation stage. Under law the police has to complete investigation and make report under Section 173, Cr.P.C. F.I.R. Cannot be quashed at investigation stage. The learned counsel referred to the following cases:--- [1997 SCR 149].
[2008 SCMR 76], [2003 P.Cr.LJ. 143], [1996 SCMR 186], [PLD 1976 Lahore 598] and [PLD 2003 Karachi 309].
In the case reported as Lt. Col. Sanaullah Raja v. Muhammad Shafi and 2 others [1997 SCR 149], it was observed as under:--- "So far as the question of exercise of powers by the Shariat Court under Section 561-A, Cr.P.C., is concerned, it may be observed that in the instant case the Police required the custody of the accused-respondent for the investigation in a case registered at Rawalpindi under Section 3/4 of the Enforcement of Prohibition of Intoxicants Act. Thus, the inherent power of the Court could not be exercised to interfere with the investigation of the Police by denying the custody of the accused- respondent."
In the case reported as Dr. Ghulam Mustafa v. The State and others [2008 SCMR 76], it was observed as under:--- "We have considered the submissions made by learned counsel for the parties and have perused the record. It is a settled law that our Constitution is based on trichotomy. The Courts have right to interpret the law and the High Court had no jurisdiction whatsoever to take the role of the investigation agency. There are several pronouncements of this Court that learned High Court has no jurisdiction to quash the F.I.Rs. While exercising Constitutional power under Article 199 of the Constitution or Section 561-A of Cr.P.C. Unless and until there are very exceptional circumstances existed. It is also a settled proposition of law that judgments of this Court are binding on each and every organ of the State by virtue of Articles 189 and 190 of the Constitution. The learned High Court had decided the case in violation of the mandatory provisions of Cr.P.C. After the enforcement of the Qisas and Diyyat Ordinance, offences affecting the human body as dealt with, under Chapter XVI i.e. Sections 299 to 338-H have been made compoundable, their composition can be given effect as provided in Section 445, Cr.P.C. At any stage. As mentioned above, the offences in the impugned F.I.R. Are not compoundable, therefore, learned High Court was not justified to quash the F.I.R. In question. By accepting the Constitutional petition the learned High Court erred in law to short circuit the normal procedure of law as provided by law while exercising equitable jurisdiction which is not in consonance with the law laid down by this Court in various pronouncements.
Reference can be made to the following judgments:---
(i) Habib Ahmed's case PLD 1992 SC 353,
(ii) Haji Sardar Khalid Saleem's case 2006 SCMR 1192, (iii) Col. Shah Sadiq's case 2006 SCMR 276."
In the case reported as Muhammad Anwar v. All Abbas, Civil Judge, Tehsil Mankera, District Bhakkar and 2 others [2003 P.Cr.LJ. 143], it was observed as under:--- "I have heard the learned counsel for the petitioner at length and perused the impugned orders and also the contents of this petition. The grounds taken by the learned counsel for petitioner for quashment of the proceedings in the criminal trial are not sufficient to exercise powers under Section 561-A, Cr.P.C. There is nowhere mentioned in the provision of Section 154, Cr.P.C. That the F.I.R. Could be lodged by the aggrieved and competent persons. Similarly the-finding of the police about the petitioner is not binding upon the Courts and it is not relevant for the decision, in the criminal case. So, the contention that the case was registered with mala fide intention cannot be considered for quashment of the proceeding in a slipshod manner without affording an opportunity to the prosecution to prove its case against the petitioner. Even otherwise, the petitioner will have an opportunity of cross-examining the prosecution witnesses, if produced before the Trial Court. The Trial Court can come to a definite conclusion only after recording the evidence of prosecution and petitioner can also prove his innocence before the Trial Court by producing his evidence in rebuttal of charges. In this view of the matter this petition has no merit. It is dismissed in limine."
In the case reported as Ahmed Saeed v. The State and another [1996 SCMR 186], it was observed as under- _ "We have carefully attended to the arguments raised by the learned counsel for the parties. We feel persuaded to agree with the learned counsel for the petitioner that the High Court, in exercise of its powers under Section 561-A, Cr.P.C., was not competent to quash the F.I.R. 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 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 any process was 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. Since we have held that the High Court had no powers to quash the F.I.R. Under Section 561-A, Cr.P.C., we need not examine correctness of the reasons given by it for quashing F.I.R."
The case titled Shahid Aziz v. The State [PLD 1976 Lahore 598] deals with the pre-requisites for transferring the cases from one Criminal Court to another. It has got no nexus with the case in hand.
In the case reported as Rana Muhammad Farooque v. Aftab Hussain and others [PLD 2003 Karachi 309] it was observed as under:--- "The first point which needs consideration would be whether F.I.R. Could be quashed during the investigation of a case.
The Section 154, Cr.P.C. Lays down; that Incharge of a Police Station upon receipt of information relating to commission of a cognizable offence orally or in writing is required to incorporate the same in a prescribed book and Section 156, Cr.P.C. Postulates that the officer-in-charge of police station may without the order of the Magistrate. Investigate any cognizable offence. Thus it is crystal clear that the investigation can 'commence after the registration of F.I.R. The object of investigation is collection of evidence.
In the cases of Shehnaz Begum v. Hon'ble Judges of High Court of Sindh arid Balochistan reported in PLD 1971 SC 677; Shoukar Ali Dogar and others v. Ghulam Qasim Khan Khakwani and others reported in PLD 1994 SC 281; Brig., (Retd.)Imtiaz Ahmed v. Government of Pakistan and others reported in 1994 SCMR 2142 and Ahmed Saleem v. Muhammad Amin 1998 P.Cr.LJ. 170, it has been held that the High Court has no power to interfere with police investigation and assume the role of investigator, It is further held in the case of Shahnaz Begum (supra) as well as in Ahmed Salim (supra) that the High Court has no power of supervision or control over Investigating Agencies, which power is vested in it in respect of Courts subordinate to it. The conduct and manner of investigation normally is not to be scrutinized under Constitutional jurisdiction which might amount to interference in police investigation as the same could not be substituted by the Court.
Consequently we are of the considered view that the quashment of F.I.R. Tantamounts to throttling the investigation, which is not permissible in law."
4. While controverting the arguments, Ch. Muhammad Manzoor, the learned counsel for respondents No. 1 and 2, argued that the appeal in the present form is not competent. The appellant has filed one appeal against two orders even dated 13.4.2011 passed in file No. 294 of 2010 and file No. 11 of 2010, therefore, the appeal merits dismissal. On merits of the case he submitted that from the perusal of FIR no cognizable offence appears to have been committed. The learned counsel submitted that F.I.R. Was registered after 11 days of occurrence which is clear proof of the fact that the case is false, fabricated and F.I.R. Has been registered with mala fide intentions. The learned counsel further argued that the land in respect of which the appellant has filed the F.I.R. Is the subject of two civil suits between the parties in the Civil Court Kotli and Civil Court has ordered for maintaining the status quo. There is no illegality in the judgment of the Shariat Court. The appeal merits dismissal.
5. Ch. Shokat Aziz, the learned Additional Advocate-General, adopted the arguments of the learned counsel for the appellant and argued that F.I.R. Cannot be quashed at investigation stage.
6. Mr. Raza Ali Khan, the learned counsel for the appellant, requested for withdrawal of appeal to the extent of judgment of the Shariat Court delivered in file No. 11 of 2010. He was allowed to withdraw the same. The appeal only remains against the order of Shariat Court passed in miscellaneous petition No. 294 of 2010.
7. We have heard the learned counsel for the parties and perused the record. F.I.R. No. 144 of 2010 was regitered at Police Station Khuiratta on 28.9.2010. The occurrence is stated to have been committed in the intervening night of 16th/17th September, 2010. The Shariat Court has accepted the application apart from other grounds mainly on the ground that F.I.R. Has been registered after a delay of 11 days. A perusal of contents of F.I.R. Reveals that application was presented before the SSP Kotli on 22.9.2010, The complainant specifically alleged that he moved an application for registration of the case at Police Station Khuiratta; but the Police Station Khuiratta has not registered the case, whereupon SSP Kotli on 22.9.2010 forwarded the application for necessary proceedings to SHO Khuiratta with a direction that he shall immediately proceed on spot and redress the grievance of the complainant. The application was received in the Police Station Khuiratta by post and the SHO Khuiratta registered F.I.R. No. 144 of 2010 on 28.9.2010. The delay appears to have been sufficiently explained. This could not be a ground for quashment of FIR.
8. Part V of the Criminal Procedure Code related to the information to the Police and its powers to investigate. Under Section 14 of Cr.P.C. Every information relating to the commission of a' cognizable offence, if given orally to an officer-in-charge; of a police station, shall be reduced to writing by him or under his direction and be read over to the informant and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it. Under Section 156 any officer-in-charge of a police station may investigate any cognizable offence without the order of Magistrate. After duly completing the investigation, he has to submit a report under Section 173, Cr.P.C. To the Magistrate concerned. The Station House Officer is empowered to register a case in a cognizable offence and investigate the same.
9. Section 561-A, Cr.P.C. Confers powers upon the High Court to make such orders as may be necessary to give effect to any order under the Code of Criminal Procedure or to prevent abuse of process of any Court or otherwise to secure the ends of justice. It is necessary to reproduce Section 561-A, Cr.P.C. Which is as under:- "Saving of inherent power of High Court. Nothing in this 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 this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
10. A bare reading of Section 561-A, Cr.P.C. Reveals that the High Court/Shariat Court can pass three. Types of orders:---
(a) To make orders for implementation of orders passed by any Court under the Code of Criminal Procedure,
(b) To prevent the abuse of process of Court, and
(c) To otherwise make any order to secure the ends of justice.
The Code of Criminal Procedure empowers the police to perform the duties in a particular sphere.
The registration of F.LR. And investigation of case is the sole duty of the police. After registration of a cognizable case, the police has to collect the material and after thorough investigation it has to submit a report to the Magistrate whether the offence has been committed or not. If the police reaches the conclusion that from the material collected, the accused are connected with the crime, then challan has to be submitted. If the police reaches the conclusion that there is no evidence, it may make a request in its report under Section 173, Cr.P.C. To the Magistrate for cancellation of case. The High Court/Shariat Court while acting under Section 561-A, Cr.P.C. Has no power to take the role of investigating agency and declare that the F.I.R. Was not correctly registered. It has powers to interfere under Section 561-A, Cr.P.C., for implementation of order of the Court and to secure the ends of justice; If the proceedings are pending before any Court and it appears that there is abuse of process of Court, only then it can make order for quashment of proceedings. The superior Courts have settled the law long time ago that the High Court/Shariat Court has no jurisdiction to quash the F.I.R. At investigation stage under Section 561-A, Cr.P.C. In a case reported as Kh. Fazal Karim v. The State and another [PLD 1976 SC 461] it has been held as under:- "It is well-settled that the inherent jurisdiction of the High Court under Section 561-A, Cr.P.C. Is neither alternative nor additional in its character and is to be rarely invoked only in the interest of justice se as to seek redress of grievances for which no other procedure is available and that the provision should, not be used to obstruct or divert the ordinary course of criminal procedure."
Similarly in a case reported as Muhammad Mansha v. Station House Officer, Police Station City, Chiniot, District Jhang and others [PLD 2006 SC 598] it was observed as under:- "............... 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 said provisions could never be exploited as a substitute for the prescribed trial or to decide the question of guilt or innocence or an accused person on the basis of material which was not admissible in terms of Qanune-Shahadat Order of 1984."
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 exercise 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 is neither 'alternative' nor 'additional' in its character and 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 provisions should not be used to obstruct or divert the ordinary course of criminal procedure."
11. In the instant case, after the registration of F.I.R., the accused-respondents secured pre-arrest bail, which was confirmed and soon thereafter the accused-respondents filed an application under Section 561-A, Cr.P.C. For quashment of F.I.R. The case was at the stage of investigation.
Challan was not presented in the Court. No order was passed by the subordinate Court under the Criminal Procedure Code. The learned single Judge in the Shariat Court quashed the F.I.R. On the ground that the F.I.R. Has been registered after a delay of 10 days and from the perusal of contents of civil suit and F.I.R., there appears a contradiction in the versions of the complainant. The learned Judge observed that "self-contradictory and divergent stance of the complainant shows that F.I.R.
No. 144/2010 is fake and fictitious, which has been registered with mala fide intention having ulterior motives to harass and pressurize the accused-petitioners; thus, prima facie no case is made out and it is a case of glaring exercise of authority of the police and if the proceedings are allowed, it will be sheer abuse of process of law and arbitrary exercise of authority by police functionary". The Shariat Court is not empowered to quash the F.I.R. At investigation stage while exercising powers under Section 561-A, Cr.P.C. The police has yet to form an opinion after collecting the material whether the offence has been committed or not and present the report under Section 173, Cr.P.C.
Before the Magistrate. There was no occasion for interference by the Shariat Court at investigation stage.
12. The result of above discussion is that the appeal is accepted. The judgment of the Shariat Court dated 30.4.2011 is set aside. Resultantly the application under Section 561-A, Cr.P.C. Is dismissed.