SYED MUHAMMAD KAZIM RAZA SHAMSI, J.---By filing petition in hand under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioners Zulfiqar Ali and Syed Yousaf Shah, have prayed for quashing of F.I.R. No.734 dated 23-8-2011, initially registered under sections 392 and 406 P.P.C. at Police Station Ghalib Market, Lahore. Subsequently, during the investigations, charge under section 392 P.P.C. was deleted.
2. Briefly stated facts of the case are that one Abrar Ahmad Yasin, reported the matter to the police asserting that the petitioners had agreed to purchase his two apartments for a consideration of Rs.90-Lakhs and in this connection, he had received two payments of Rs.16-Lakhs and Rs. 4 Lakh through cheques as earnest money whereafter the complainant on the guarantee of one Shakil Ahmad had executed a sale deed in favour of the petitioners. Subsequently, when the complainant demanded, his money of Rs.70-Lakhs from the petitioners, they refused to adhere to his request and had also snatched the cheque from his pocket at the pistol point which cheque in the amount of Rs.70-Lakhs was to returned by the complainant to the petitioners on the pretext of having issued another cheque on the account of petitioners maintained with the bank at Lahore. On the, basis of these allegations, an F.I.R. has been registered at the, police station against the petitioners.
3. Learned counsel for the petitioners ha:. forcefully argued that the offence under section 406 P.PC. is not made out against the petitioner that the matter relates to civil jurisdiction and no criminal action can be initiated against, the petitioners on the basis of non-payment of sale price of the apartments and that this court has jurisdiction to quash the F.I.R. even if the challan has been submitted to the court. In this connection, the learned counsel has placed reliance upon various judgments of this court as well as of the apex Court.
4. While controverting these contentions, the learned counsel for respondent' No.2 argued that this court initially enjoys little jurisdiction to interfere into the matters of quashing of F.I.R. and added that after submission of challan, it is within the domain of the learned trial court to decide whether any offence from the given circumstances is made out against the petitioner or not. He has also disputed the issuance of cheques which the petitioner has narrated in Para-4 of this petition whereby the complainant after execution of sale deed had borrowed cash amount from the petitioners and had issued various cheques in liquidation of that liability which cheques were subsequently dishonoured by the bank and the petitioner side had lodged the F.I.R. against the complainant: The learned counsel has also placed reliance upon various judgments of the apex court including the latest view taken by the Hon'ble Supreme Court in case "Director-General, Anti- Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others" (PLD 2013 Supreme Court 401).
5. The arguments made by learned counsel for the parties have duly been appreciated and the case-law cited at the bar has also been examined minutely.
6. It is the case of the petitioners that from the bare perusal of the F.I.R., the offence as charged against the petitioners is not made out rather the contents of the F.I.R. indicate that the parties have a dispute inter se which is of civil in nature and on this fact, criminal liability did sot accrue nor any F.I.R. can be lodged. In this connection, the learned counsel has taken the court through various documents to establish his Point and also to Para-4 of this petition wherein it is mentioned that the complainant of the case had borrowed cash from the petitioners after execution of sale deed which was executed on 3-6-2011 in favour of the petitioners and in liquidation of that liability, he has issued cheques upon bouncing of which cheques, he had lodged F.I.Rs. against the complainant of the case. This fact has been disputed by learned counsel for the respondent by submitting that the submission so made by learned counsel for the petitioners is not the true picture and has attempted to unfold the reality but this court after considering these submissions of the learned counsel reached at a conclusion that this dispute 'between the parties involves factual controversy and this is not the proper forum to hold an enquiry into disputed questions. This submission made by learned counsel for the respondent that after submission of challan in the court, quashing of F.I.R. is ousted from the jurisdiction of this court and falls within the domain of learned trial court has the substance for the reason that when a court takes cognizance of the matter, which is a proper forum created by law, then constitutional jurisdiction cannot be exercised in favour of quashing of F.I.R. The reliance placed by learned counsel for the petitioners in contrast to submission made on behalf of respondent, while relying upon the case titled as "Miraj Khan v.
Gul Ahmed and 3 Others" 2000 SCM R 122 is not much helpful to the petitioners for the reason that the Hon'ble Supreme Court in the cases reported as "Ahmed Saeed v. The State and another" (1996 SCMR I80). has candidly observed that this court has no jurisdiction to quash the F.I.R. even under section 561-A Cr.P.C. This view was further followed in the case of "Col. Shah Sadiq v. Muhammad Ashiq and others" (2006, SCMR 276) wherein the Hon'ble Supreme Court had pointed out the remedies available to a litigant before the learned trial court and had maintained the order of this court refusing to quash the F.I.R. Similarly, in another judgment reported as "Dr. Ghulam Mustafa v.
The State and others" (2008 SCM R 76), this view was followed by the apex Court. The latest view provided by the Hon'ble Supreme .Court is in the case of "Director-General, Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others" (PLD 2013 Supreme Court 401) wherein it has been observed as under:-- "The law is quite settled by now that after taking of cognizance of a case by a trial court the. F.I.R. registered in that case cannot be quashed and the fate of the case and of the accused persons challanged therein is to be determined by the trial court itself. It goes without saying that if after taking of cognizance of a case by the trial court an accused person deems himself to be innocent and falsely implicated and he wishes to avoid the rigours of a trial then the law has provided him a remedy under sections 249-A/265-K, Cr.P.C. to seek his premature acquittal if the charge against him is groundless or there is probability of his conviction."
When this view taken by the apex Court has been examined vis-a-vis contents of the case in hand, it is found that by seeking relief of quashing of F.I.R. in the constitutional jurisdiction, the petitioners want to short circuit the procedure and want to avail the opportunity to get his acquittal. from the charge in presence of other remedies as stated above. This practice cannot be appreciated in view of this latest view of the Hon'ble Supreme 'Court which has also provided remedy for an aggrieved person to be availed before the learned trial court, seined of the matter.
7. Keeping in view the ratio of cases stated above, it is quite clear that the relief prayed for by the petitioners through the instant petition cannot be granted to him in view of availability of alternate remedies before the learned trial court. On the merits of the case, I have intentionally refrained myself from giving any comment lest it may not prejudice the mind of the learned trial Court.
In view of the above, the petition in hand is dismissed in the light of afore-noted observations.
However, the petitioners shall be at liberty to avail their legal remedies before the learned trial Court as enunciated in the cited cases supra.#