ARSHAD MAHMOOD TABASSUM, J.---Through the instant petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, read with section 561-A, Cr.P.C., the petitioner seeks quashment of FIR No,23 dated 4-11-2013, registered under section 31 of Pakistan Telecommunication (Re-Organization) Act, 1996 (hereinafter referred to as The Act, 1996), read with sections 36, 37 of The Electronic Transactions Ordinance, 2002 and section 109, P.P.C., at Police Station FIA, Cyber Crimes Circle, Rawalpindi.
2. Briefly, the facts of the case are that on the complaint of Pakistan Telecommunication Authority
(PTA) submitted to the FIA inquiry No,192/13 was initiated and ultimately, the above mentioned criminal case was registered against the petitioner and others on the allegation that they were involved in Illegal Termination of International Traffic Bypassing Legal Gateway Exchange.
Accordingly, a raid was conducted at the premises of M/s. Wise Communication (Pvt.) Ltd. Situated at House No,96, 10th Road, Satellite Town, Rawalpindi and it was found that the petitioner and his co-accused persons were involved in illegal termination of international voice traffic, thereby causing huge loss to the public exchequer.
3. Learned counsel for the petitioner has argued that in view of section 31(5) of the Act, 1996, FIR could not be lodged and no court could take cognizance of any offence, punishable under the said Act, except on a complaint in writing by an officer authorized by the PTA or the Frequency Allocation Board. He has further argued that the offences under sections 36, 37 of the Electronic Transactions Ordinance, 2002 and section 109, P.P.C. Are also not attracted to the facts of the instant case, hence, on this score also, the FIR is liable to be quashed and that the petitioner has been victimized due to professional rivalry with the PTCL. He has relied upon the case titled "Liaqat Islam v. The State" (2011 YLR 2280).
4. Conversely, learned counsel representing the respondents contested this petition with vehemence.
5. Heard. Record perused.
6. The challan against the petitioner and his co-accused persons has since been submitted to the court, therefore, the petitioner has an alternate remedy by way of approaching the learned trial court for redressal of his grievance. Thus in view of availability of an alternate remedy, this petition is not maintainable. More particularly, when under Article 199(1) of the Constitution of Islamic Republic of Pakistan, 1973, the exercise of constitutional jurisdiction is subject to the condition that the petitioner should have no other adequate remedy provided under the law. Reliance in this regard may be placed on the case titled "Director General Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others" (PLD 2013 SC 401). The relevant portion whereof reads as under:-- Apart from that the impugned order had been passed by the learned Judge-in-Chamber of the Lahore High Court, Lahore at a time when a Challan in the relevant criminal case had already been submitted before the learned trial court and, the learned Trial court had already taken cognizance of the case. The law is quite settled by now that after taking of cognizance of a case by a trial court the FIR registered in that case cannot be quashed and the fate of the case and of the accused persons challaned 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 no probability of his conviction.
7. There is yet another aspect of the case. The petitioner has alone approached this Court for quashment of FIR, although there are certain other co-accused of the petitioner, who have not been joined either as petitioners or respondents, therefore, allowing this petition will amount to partial quashment of FIR. This is not permissible under the law in view of the law laid down by the Apex Court in the case of Director General, Anti-Corruption Establishment, Lahore and others, supra, wherein it was ruled as under:--
2. After hearing the learned Additional Advocate-General, Punjab appearing for the appellants and the learned counsel for respondent No.1 and having gone through the record of the case with their assistance we have found that through the impugned order the learned Judge-in-Chamber of the Lahore High Court, Lahore had partially quashed the relevant FIR to the extent of respondent No,1 whereas partial quashing of an FIR to the extent of some of the accused persons mentioned therein is a legal impossibility.
Similarly, the Apex Court in the case of Col. Shah Sadiq (2006 SCM R 276) has ruled as under:--
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.
(ill)" 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.
8. As regards section 31(5) of the Act, 1996, there is no denial of the fact that the said provisions of law reads as under:--
31. Offences and penalties.---(1).......................
(2) ............................
(3) ............................
(4) ..........................
5. No Court shall take cognizance of any offence punishable under this Act except on a complaint in writing by an officer authorized by the Authority or the Board.
However, the offences charged against the petitioner and his co-accused persons are also under Electronic Transactions Ordinance, 2002 and Pakistan Penal Code, therefore, to my mind, the bar contained in section 31(5) of The Act, 1996, cannot be pressed into service to seek quashment of the FIR in question.
8.(sic) It is also observed that from the FIR itself it is evident that the complaint was lodged by the PTA on the basis of which, an inquiry was initiated and ultimately, FIR was registered.
9. As regards the case law, relied upon by the learned counsel for the petitioner, the same appears to be quite distinguishable, in that in the said case, the complaint was lodged by the PTCL, unlike the instant case, where the PTA has lodged the complaint.
10. In view of the above, this petition has no merit, which fails and the same is hereby dism issed.