MUHAMMAD SHERAZ KIANI, J.---The captioned petition has been filed under section 561A, Cr.P.C. for quashment of FIR No,276/17 in offences under sections 448, 451, 34, A.P.C., whereby the petitioner has implored the following relief:- "In view of the above submission, it is therefore, most respectfully prayed that while accepting this application, the impugned FIR No,276/17 registered at Police Station Thothal, Mirpur may kindly be ordered to be quashed under law as no offence was ever committed by the petitioner or the Proformarespondent nor any offence is made out from the plain reading of the impugned FIR."
2. It has been stated in the application that petitioner hails from village Thothal, Tehsil Mirpur and is First Class State subject of AJ&K. That the Complainant, Altaf Hussain on the behest of Muhammad Yaseen, being attorney, filed a frivolous, vague and mala fide application at Police Station Thothal, Mirpur upon which, the concerned Police registered the impugned FIR No,276/17 on 27.09.2017 in offences under sections 448, 451 and 34, A.P.C. just to humiliate the petitioner by implicating him and his real brother Afzal Ahmed. After registration of the case, petitioner applied for pre-arrest bail before learned Sessions Judge, Mirpur on 28.09.2017, however, after addition of the offence under section 14 EHA, the petitioner moved another bail application before the said Court. It is further averred that no offence was committed by the petitioner, because in the FIR, it is clearly mentioned in the FIR that Afzal Ahmed, Proforma-respondent along with petitioner went to his house and changed the locks and threw out his tenants due to family dispute between the petitioner and one Muhammad Yaseen, which shows that the impugned FIR was registered just to harass and humiliate the petitioner and Proforma-respondent. Petitioner never thinks of to commit such like offence. Offence under section 14, EHA was only, added after the registration of the FIR when the petitioner obtained pre-arrest bail. Finally, it is prayed, that by accepting the same, the impugned FIR may kindly be quashed.
3. Pre-admission notices were issued to the respondents for filing comments/objections.
Respondent No,2 filed comments on 13.11.2017.
4. The learned counsel for the petitioner reiterated the points raised in the petition and prayed for quashment of the impugned FIR. He contended that the offence under section 14, EHA does not constitute and when the matter is subjudice before the Renj Controller, the criminal proceedings cannot take place, he added.
5. On the other hand, the learned counsel for respondent No,2 submitted that the petitioner has filed this petition only to defeat the investigating authorities and to harass the respondent No,2. He further argued that petitioner and Proforma-respondent prepared a bogus Rent agreement, as such they have committed offence and now they want to escape from the investigation. The learned counsel prayed for dismissal of the petition.
6. I have heard the learned counsel for the parties and gone through the record of the case with utmost care.
7. Under section 561/A, Cr.P.C. an FIR can be quashed in the following eventualities;-
(i) if there is any jurisdictional defect;
(ii) If there is any patent violation of some provisions of law;
(iii) If allegation as contained in the complaint or FIR, even if believed, no case .was made out and the continuation of the proceedings would amount to sheer abuse of process of the Court;
(iv) When an endeavour was made to enforce civil liability through the machinery of criminal Court,
(v) In ordinate delay amounted to abuse of process of Court has been made.
Reliance can be placed upon the following authorities;- i. 2012 PCr.LJ 630 Pesh. ii PLD 2010 Kar 204. iii. 1999 MLD 1632 Lah.
8. In the present case, it is alleged by the applicant that the applicant has not committed any offence and the case was registered due to some mala fide intention. Both questions are questions of fact, which cannot be determined at this forum. It is the function of investigation officer and thereafter for the trial Court to resolve the question of facts after recording evidence. This Court generally does not interfere with the investigating proceedings. It is relevant to note here that the FIR could be quashed under inherent powers of this Court only if the Court considers that the case has been registered with unlawful authority and from contents of the FIR no case is made out From bare reading of the FIR it cannot be said that no offence has been made out. Furthermore, this Court under section 561/A, Cr.P.C. cannot interfere with the investigation of the case which is the domain of the investigating authority. The apex court of AJ&K in a case titled "Shah Muhammad v.
Muhammad Younis and 4 others [2014 SCR 183] held that:-- "it is for the police to form a 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."
In a case titled Parveen Azam and others v. SSP District Mirpur and 4 others [2015 SCR 837], held that; - "According to the enforced law, the Investigating Agency is vested with the powers to investigate the matter impartially. Consequently, the Courts avoid to interfere with the investigation unless there appears any visible departure from law or violation of the principles of law."
It is the duty of the Investigating Agency to investigate the matter according to law without being partisan or misusing any process of law. The investigating Agency has not only to consider the version of the complainant but is also duty bound at, the same time to provide equal opportunity of defence to the accused-party and if there is any legal defence, that should also be properly considered according to law."
9. So, registration of the case and FIR is sole duty of the police and to submit the report to Magistrate/trial Court. High Court while exercising powers under section 561/A of Cr.P.C. has no role at investigation stage. It is further held this Court has powers to interfere under section 561/A of 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 Courts only then it can make order for quashment of proceedings. Quashment of FIR is ordered only in exceptional cases when the same is registered without lawful authority.
10. So, from the survey of aforementioned case law and in the light of facts of the present case, I have come to the conclusion that this petition is not maintainable in the eye of law. If it is allowed every accused would like to come in the Court for quashment of every case registered under section 154, Cr.P.C. and the whole scheme of law would be frustrated that should not be allowed.
11. So far as the contention of the learned counsel for the petitioner/applicant that offence under section 14, EHA does not attract in this case is concerned, in this regard, it is pertinent to note here that this question cannot be resolved at this stage, because it is for the trial Court and investigating agency, who after investigation/trial if found that offence under section 14, EHA does not attract against the petitioner, can exonerate him from the offence, therefore, the contention is hereby repelled. Furthermore, mere fact that a case is pending adjudication, before the Rent Controller is not a ground to stop the criminal proceeding, as it is an independent and separate case.
In the light of what has been stated above, finding no force in this application, therefore it is hereby dismissed.