Through this petition filed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, petitioners herein seek quashment of FIR No, 2/14 registered by the respondents allegedly in violation of law and with mala fide intention. It is also prayed that Govt. may be directed to proceed under the relevant law against the respondents for misconduct committed by them by violating the statutory law of the land.
Precise facts of the case are that Petititioner No, 1 is a business man whereas Petitioners No, 2 and 3 are Head of the Department of Azad Jammu and Kashmir University of Computer Sciences and Sociology respectively. It is alleged that after the earthquake, Respondent No, 5 obtained NOC on 16.01.2008 for construction of the 1st floor of his house from Development Authority Muzaffarabad (DAM), which was issued with some conditions. Respondent No, 5 in negation of the above NOC obtained another NOC on 28.01.2010 for the construction of wall around the plot situated in Khasra No, 324 measuring 11 marlas at Neelum Mohala Muzaffarabad. Petitioner No, 2 alongwith his sister namely Yasmeen Mir filed a suit for permanent injunction. After necessary proceedings the suit was decreed by, the learned Senior Civil Judge vide his judgment and decree dated 21.3.2013. It was averred that the judgment dated 21.3.2013 has attained finality for having not been challenged before any higher forum. The petitioner requested the DAM to take steps in furtherance of the said judgment in letter and spirit whereupon the pro-forma respondents in compliance with the aforesaid judgment removed all the encroachment made by the respondents. It was claimed that respondents filed many complaints against Petitioner No, 1 which were rejected. Petitioner No, 1 also filed a suit for damages before the appellate Court and in order to frustrate the decree of mandatory injunction and the suit for recovery of damages, Respondent No, 5 manoeuvred to get registered a case against the petitioners and pro-forma respondents vide F.I.R No, 02/2014, in the offences under Sections 380, 109 APC read with Section 5(2) PCA in connivance with Respondent No, 2 who is close relative of Respondent No,
5. It is alleged that Respondent No, 5 has misused his authority and illegally ordered to register above mentioned F.I.R. The case of the petitioners is that F.I.R lodged against the petitioners and Pro-forma respondents is liable to be quashed for having been registered with malafide intention and without jurisdictional competence.
Respondents have filed written statement, wherein, it is stated that petitioners have filed the petition with mala-fide intention and have not come to the Court with clean hands, therefore, they are not entitled to any relief. It is averred that F.I.R has been lodged in accordance with law because the petitioners in connivance with the staff of DAM demolished the shelter of the respondents and also removed the roof of the 2nd story which was inside the boundary wall and was constructed on the landed property of Respondent No,
5. It is alleged that petitioners destroyed the roof of the respondent without any legal justification in his absence at night, therefore, F.I.R has rightly been lodged against the petitioners and Pro-forma respondents and Staff of DAM. It is claimed that neither any misuse of the authority nor the law has been committed by the respondents.
Sardar Karam Dad Khan, the learned Advocate appearing for the petitioner while relying upon the judgment and decree passed by the learned Senior Civil Judge Muzaffarabad on 21.3.2013 vehemently argued that the suit for removal of the encroachment/construction raised by the Defendant No, 5 in violation of NOC issued to him by DAM was filed on 04.11.2009. The suit was contested by Defendant No, 5 and ultimately the Court granted the decree of mandatory; injunction on 21.3.2013. The official respondents were directed to remove the construction at their own but they did not comply with the direction of the Court whereupon an application was made to the official respondents who were also party in the case filed before the Senior Civil . Judge and were also directed to implement the decree. He argued that on the direction of the Court Respondents No, 1 to 3 have demolished the construction which was proved to have been raised illegally in violation of NOC of the Development Authority, therefore,case could be registered against the petitioners as well as official respondents. The learned Advocate further argued that a case for recovery of damages to the tune of Rs,2,50,00,25,000/- was also pending before the District Judge against the complainant and impugned FIR has been lodged in order to drag the petitioners and pro-forma respondents into unnecessary and unwarranted litigation. He also argued that in this case police without any lawful authority and holding an inquiry in presence of the decree of the competent Court has registered the case. The learned Advocate further contended that registration of the case is mala-fide which has been registered to frustrate the decree of mandatory injunction issued by Civil Court and in order to harass the petitioners and pro-forma respondents and the police has no authority to bypass judgment of the Civil Court. The learned Advocate submitted that unauthorized structure was demolished on 06.06.2013 and the case has been registered on 20.1.2014 after considerable delay without there being any plausible explanation. The learned Advocate further submitted that the offence with which the petitioners and the private respondents have been charged were part of the schedule of the Azad Jammu and Kashmir Ehtesab Bureau Act, 2001 and the Anti-Corruption establishment was also given under the administrative control of the Ehtesab Bureau vide notification dated 06.10.2000, therefore, without permission of Chairman, no action could have been taken by the anticorruption police, hence, continuation of investigation tantamounts to abuse of the process of law. The learned Advocate in support of his submissions placed reliance on the following cases:--
1. A Rehman Malik and another vs. The State and another [PLD 2010 Lahore 353].
2. Rifat Ali Barq vs. The State [NLR 1990 CrLJ 569].
3. Ghulam Rasool Hyderi vs. S.D.M. Tribunal Khairpur [1989 PCr.LJ 458].
4. Byranid Avari Etc vs. The State [NLR 1989 Criminal 460].
5. Mst. Gulnaz Bibi vs. Mian Muhammad Younas and 2 others. [2003 M LD 1608].
In A. Rehman Malik's case a division bench of the Lahore High Court in Para 15, observed as under: "It is also observed that all these cases relate to special law i,e, FIR and Anti-Corruption wherefrom these cases were brought to NAB and in Accountability Courts. Now Keeping in view the two principles that in case of any controversy or lis between two special laws, later shall prevail and with transition of jurisdiction from other Courts to NAB Courts the offences were also changed after transitional process in which the accused are not on bail, but having created this vacuum also the accused are left to be not on bail in substantive offences, therefore, they are to be arrested otherwise."
In the 2nd case from the contents of the FIR impugned therein, it was revealed that no offence was made out against the petitioner and it was held that in order to secure the ends of justice High Curt should come to rescue of accused and save them from agony of an unwarranted trial which certainly would amount to an abuse of process of Court.
The facts of the 3rd case are distinguishable therefore, need not to be mentioned.
In the 4th case it was observed that investigation by the police on the basis of an FIR is open to judicial scrutiny. In this case after considering the case law relied upon by Ch. Shaukat Aziz, the learned Additional Advocate General the Hon'ble Peshawar High Court in Para 6 of the report observed as under: "The ratio decidendi of the precedents cited before use by the learned counsel for the respondent in cases, Shahnaz Begum versus The Honourable Judges of the High Courts of Sindh and Baloachistan, (PLD 1971 SC 677) Nazir Ahmed and others versus Muhammad Shafi and another (PLD 1980 SC 6), Abdul Aleen Versus Special Judge, customs Lahore and another (1982 SCM R 73)
Ghulam Muhammad versus Muzammal Khan and three others (PLD 1967 SC 317), does not go counter to our views expressed above. In most of the above cited judgments the import of Section 561-A, Cr.P.C. viz-a-viz criminal investigation was considered. It is nowhere laid down that Police action in criminal investigation even if in excess of its authority or beyond its competence or mala- fide cannot be looked into by this Court in its Constitutional jurisdiction. As a matter of fact the Supreme Court in case Shahnaz Begum Versus The Honourable Judges of the High Court Sindh and Baluchistan, referred to above, made a distinction between the power of the High Court under Section 561-A of the Criminal Procedure Code and its Constitutional jurisdiction under Article 98 of the Constitution of 1962 and observed; "If an investigation is launched mala fide or is dearly beyond the jurisdiction of the Investigating Agency concerned then it may be possible for the action of the Investigating Agencies to be corrected by a proper proceedings under Article 98 of the Constitution of 1962."
Furthermore, Article 4 of the Constitution lays the basis of Rule of Law in Pakistan. Every action of even the minutest cog in the State machinery is to be justified on the basis of law."
In the last case MLD 2003 the question of Nikkah was involved. The petitioners therein contracted marriage in accordance with law and keeping in view the overall circumstances of that case, FIR impugned therein, was quashed.
Ch. Shaukat Aziz, the learned AAG, appearing for the other side contended that officers of the development authority have not acted bona fidely rather they have acted as stool of the petitioners and private respondents and have taken the law in their own hands and their action clearly constitute the offence with which they have been charged, therefore, Anti-Corruption police cannot be stopped on the grounds argued on behalf of the petitioners. The learned Advocate further argued that well considered view of the superior Courts is that the Court cannot interfere with the investigation process when a case is registered so that police should be allowed to conduct the investigation in accordance with law. The learned Advocate contended that petitioners have an ample opportunity to prove their case before the police. The learned Advocate also contended that registration of the FIR without the permission of Chairman Ehtesab Bureau does not invalidate the action taken by the Anti-Corruption establishment and if a case is made out finally that would be challaned in accordance with law before the competent Court. The learned Advocate submitted that petition has been filed with malafide intention in order to frustrate the process of law, therefore, the same is liable to be dismissed. The learned Advocate in support of his submissions placed reliance on the following cases:--
1. Shahnaz Begum vs. The Hon'ble Judges of the High Court of Sindh and Baluchistan and another.
[PLD 1971 S.0 677].
2. Rana Muhammad Farooque and others vs. Aftab Hussain. [PLD 2003 Karachi 309].
In S,hahnaz Begum's case the apex Court of Pakistan observed that High Court has no power under Section 561-A Cr.P.0 to interfere with police investigation. The reliance in that case was placed by the apex Court on PLD 1967 S.0 317 wherein at page 325 it was observed as under:-- "The inherent jurisdiction given by Section 561-A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances 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, as has repeatedly been pointed out in a number of decisions, should be extremely reluctant to interfere in a case where a competent Court has, after examining the evidence adduced before it, come to the view that a prima fade 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. This the High Court has not found in the present case but has merely proceeded on an erroneous conception that in a case where a complaint has been filed the police has no jurisdiction to investigate into any other offence which comes to its notice in the course of the investigation of the complaint, particularly, if the offence disclosed is of a non-cognizable nature.
The High Court itself has referred to a full bench authority of the Madras High Court where a contrary view was taken but has not quoted any other authority in support of its own view. We are in agreement with the views expressed by the Madras High Court for, we can see no legal bar to the police submitting a challan in respect of offences other than those mentioned in the First Information Report, if the same should come to its notice during the course of the investigation on the basis of the complaint except in the cases mentioned in Sections 196 to 199, Cr.P.C. Section 190(1)(b) of the Code of Criminal Procedure clearly gives jurisdiction to the Magistrate mentioned therein to take cognizance of an offence on the basis of a police report whether the offence be cognizable or non-cognizable. In the present case, the Magistrate was an Additional District Magistrate and one of the offences in respect of which the challan was submitted was under Section 408, P.P.C., which was cognizable. Thus, even the obstacle posed by Section 155(2), Cr.P.C, did not stand in the way. The challan submitted by the police was, therefore, lawfully submitted and legally enquired into."
In Rana Muhammad Farooque's case it was observed that High Court has no power to interfere with the police investigation and assume the role of investigator.
I have heard the learned Advocates for the parties and gone through the record of the case.
The contention of Ch. Shaukat Aziz, the learned AAG that this Court cannot interfere in the process of investigation and assume the role of investigator while exercising the extra ordinary jurisdiction, is devoid of any force. It is correct that the process of investigation cannot be interfered with by this Court but when mala-fide and misuse of authority on the part of the investigating agency is shown this Court is not helpless to rescue the person against whom the illegal action is being taken by the police. As stated above, Ch. Shaukat Aziz, AAG has placed reliance on Shahnaz Begum's case, referred to herein above. In that case the apex Court of Pakistan held that High Court has no power under Section 561-A Cr.P.0 to interfere with the police investigation in criminal offences but at page 693 of the report it was observed "if an investigation is launched mala fide or is clearly beyond the jurisdiction of the investigating agencies concerned then it may be possible for the action of the investigating agencies to be corrected by a proper proceeding either under Article 98 of the Constitution of 1962 or under the provisions of Section 491 of the Criminal Procedure Code, if the applicant is in the latter case in detention, but not be invoking the inherent power under Section 561-A of the Criminal Procedure Code." The apex Court has not observed in the judgment that in each and every case High Court is powerless even where it is brought into its notice through the proper proceedings that police is abusing its powers and authority and has registered the case despite the fact that no offence was constituted. The view was reiterated in case titled Anwar Ahmad Khan v. The State (1997 PSC (Crl.) 482). In that case Shahnaz Begum's case was also considered and page 500 in Para 17 it was observed as under: "It is well-settled principle that where investigation is mala fide or without jurisdiction, the High Court in exercise of its Constitutional jurisdiction under Article 199 is competent to correct such proceedings and pass necessary order to ensure justice and fair play. The Investigating Authorities do not have the entire and total authority of running investigation according to their whims."
In Muhammad Anwar's case (PLD 1997 Lahore 15) the proposition was again considered by the learned Chief Justice of the time and after considering the relevant law at page 20 it was observed as under: "The power of judicial review, however, must be exercised within the Constitutional limits set by the Parliamentary system and the judicial restraint is' essential to the continuance and preservation of 'rule of law' and properly instituted criminal action or proceedings especially at the investigation stage cannot be allowed to be pre-empt by having resort to civil proceedings in the Civil Court or High Court. In the case of Imperial Tobacco Ltd. and another v. Attorney-General (1981 AC 718) it was though held that, administration of justice would become chaotic if after the start of prosecution, declaration of innocence could be obtained from a Civil Court, but Lord Lane also observed, "where however criminal proceedings have been properly instituted and are not vexatious or abuse of process of Court, it is not proper exercise of the Court's discretion to grant the defendant in those proceedings a declaration that the facts to be alleged by prosecution do, not in law prove the offence charged". With respect, I will venture to say that grievance may have to be redressed if it is shown that prosecution of a citizen is being carried out by abusing the statutory power or machinery of criminal law is being used mala fide or for ulterior purpose."
So for controversy raised in this petition is concerned it may be stated that a suit for perpetual injunction/mandatory injunction was filed by the petitioners and pro-forma respondents in the Civil Court in which it was specifically prayed that due to the illegal construction raised by the defendants therein the easement right, pardadari of the plaintiffs is effected. The suit was contested by the parties and the trial Court at the conclusion of the proceedings granted decree of mandatory injunction in the following terms:- {{URDU TEXT}} The above judgment has not been challenged by the defendants before any higher forum thus, has attained finality. A perusal of above would show that even the functionaries of the Development Authority were directed to protect the rights of the plaintiffs, on move of the petitioners they have demolished the illegal construction as was ordered by the Court. In my estimation the registration of the case against the petitioners as well as private .respondents and functionary of the Development Authority Muzaffarabad was without lawful authority and violative of the judgment of the Court dated 21.03.2013. The same was also abuse of law which cannot be allowed even where after registration of the FIR the investigation has been started by the police functionary. The proper course for the defendants was either to challenge the judgment and decree of the Civil Court before the District Judge and subsequently before this Court or at least to file the application before the trial Court for violation of the direction given in the judgment. If any A action is taken by the Development Authority against its own law then the proper course for the defendants/effected persons was to file suit for damages etc. The position of Municipal Corporation as well as Development Authority so for implementation of Municipal Laws is concerned as has been noticed in various cases is very poor and if they are dragged into unwarranted litigation the same will be more worsen.
The contention of Sardar K.D.Khan, the learned Advocate for the petitioners that the Anti-Corruption establishment was under the administrative control of the Ehtesab Bureau and the offence in which FIR has been registered is also mentioned in the schedule of the Ehtesab Bureau Act, therefore, without pre-permission of the Chairman Ehtesab Bureau and functionary subordinate to it no case could be registered/investigated has no substance. For proper appreciation of the matter Section 21 of the Azad Jammu & Kashmir Ehtesab Bureau Act, 2001 is reproduced as under:- - "Cognizance of Offences:--(1) The Court shall not take cognizance of any offence under this Act except on a reference made by the Chairman or an officer of the Ehtesab Bureau duly authorized by him.
(2) A reference under this Act shall be initiated by the Ehtesab Bureau, on-- (a)a reference received from the Government, or (b)receipt of a complaint, or (c)its own accord.
(3)Where the Chairman or an officer of the Ehtesab Bureau duly authorized by him is of the opinion that it is, or may be necessary and appropriate to initiate proceedings against any person, he shall refer the matter for inquiry or investigation.
(4)The responsibility for inquiry into and investigation of an offence alleged to have been committed under this Act shall rest on the Ehtesab Bureau to the exclusion of any other agency or authority, unless any such agency or authority is required to do so by the Chairman.
(5) ---------------------
(6) ---------------------
(7) ---------------------
(8) --------------------- Clause (c) of sub-section (2) has been omitted vide amended Act V of 2010.
A perusal of the above provision of law would show that were the Chairman or an officer of the Ehtesab Bureau duly authorized by him is of the opinion that it is, or may be, necessary and appropriate to initiate proceedings against any person he shall refer the matter for inquiry or investigation. A perusal of sub-section (4) further reveals that Ehtesab Bureau can direct any agency for the purpose of investigation but where the Chairman has not received any complaint or not directed any authority it does not mean that offence mentioned under the other laws cannot be investigated or case cannot be registered by the agencies provided/established under these laws. The Anti-Corruption establishment enjoys vast powers and despite the enforcement of Ehtesab Bureau Act, the offences committed under the Anti-Corruption laws are being investigated; by the Anti-Corruption agencies and their challan are submitted before the Anti- Corruption Judge. Only in those cases, the prior approval of the Chairman is required, where the Ehtesab Bureau receives any complaint for the offences mentioned in Ehtesab Bureau Act or schedule appended therewith. Therefore, FIR impugned herein cannot be quashed on that ground.
However, it is amply proved from the copy of the judgment that officers of the Development Authority were party in the suit and they were also directed to implement the command given in the judgment, therefore, their action cannot be converted into criminal liability and the registration of the case against them is without lawful authority and is abuse of the process of law and the continuation of the proceedings on the basis of impugned FIR will frustrate the final verdict of the Civil Court.
In view of above, FIR No, 2/14 registered at Police Station Anti-Corruption Muzaffarabad on 20.01.2014,in the offences under Sections 380/109 PC read with Section 5(2) PCA is hereby quashed.