SYED MUHAMMAD ATTIQUE SHAH, J.---Through this single judgment, this Court shall dispose of two writ petitions, both being arising out of two FIRs regarding the same occurrence and having common question of law and facts involved therein. The particulars of the writ petitions are as under:
(i) Writ Petition No,490-A/2017 Mst. Robina and others v. District Police Officer and others.
(ii) Writ Petition No,504-A/2017 Shazada Fahad v. The State and another.
2. In the first writ petition, Mst. Robina and three others, petitioners seek quashment of case FIR No,35 dated 15/02/2017 under sections 436/34, P.P.C. registered against them in Police Station Khaki, Mansehra, on the report of respondent No,3/complainant (petitioner in W.P. No,504-A/2017) and in the second writ petition, Shazada Fahad seeks quashment of FIR No,49 dated 17.03.2017 under sections 436/34, P.P.C., Police Station Khaki, Mansehra, registered against him and others on the report of complainant/respondent No,2, who is step brother of Shazada Fahad, petitioner and real brother of petitioners Nos,3 and 4 in W.P. No,490-A/2017. The subject matter in both the petition is one and the same cattle shed which was allegedly set on fire and both the parties are claiming its ownership and have leveled allegations against each other in their respective FIRs regarding its setting on fire.
3. Arguments of the learned counsel for the petitioners in both the petitions heard and the available record perused with their valuable assistance.
4. Perusal of record reveals that the grievances of the petitioners alleged by them in their respective petitions for quashment of FIR, are that they have falsely been implicated in the subject FIRs with mala fide intention in connivance with the local police.
5. It is now well settled that this Court has limited scope and jurisdiction in such like matters while exercising its jurisdiction under Article 199 of the Constitution, therefore, this Court always refrains itself from interference with the police investigation of a criminal case, except in exceptional circumstances, where the case is registered without any justification, authority or in clear violation of any law. Obviously, criminal cases are decided on the basis of material so collected by the prosecution during the course of investigation, and the evidence recorded in the trial Court, and that too, after appraisal of evidence by it in accordance with the law applicable thereto. This Court cannot assume the role of an investigation agency or of a trial Court to deliberate upon the factual controversies involved in the present petitions in exercise of its constitutional jurisdiction. This view has been consistently enunciated by the Superior Courts that High Court ought to have refrained from exercising constitutional jurisdiction during investigation of a criminal case.
6. It has been held by the august Apex Court in Col. Shah Sadiq's case (2006 SCM R 276), in unequivocal terms that: "It is also a settled proposition of law that if prima facie an offence has been committed, ordinary course of trial before the Court should not be allowed to be deflected by resorting to constitutional jurisdiction of High Court. By accepting the constitutional petition the High Court erred in law to short circuit the normal procedure of law as provided under Cr.P.0 and police rules while exercising equitable jurisdiction which is not in consonance with the law laid down by this Court in A. Habib Ahmad v. M.K.G. Scott Christian PLD 1992 SC 353. The learned High Court had quashed the FIR in such a manner as if the respondent had filed an appeal before the High Court against order passed by the trial Court. The learned High Court had no jurisdiction to quash the impugned FIR by appreciation of the documents produced by the parties without providing chance to cross-examine or confronting the documents in question. Respondents had alternative remedy to raise objection at the time of framing the charge against them by the trial Court or at the time of final disposal of the trial after recording the evidence. Even otherwise, respondents have more than one alternative remedies before the trial Court under the Cr.P.C. i,e, sections 265-K, 249-A or to approach the concerned Magistrate for cancellation of (he case under proviiions of Cr. P.C. The respondents have following alternative remedies under Cr. P.C. -- (a)To appear before the Investigating Officer to prove their innocence.
(b)To approach the competent higher authorities of the Investigating Officer having powers vide section 551 of Cr.P.C.
(c)After completion of the investigation, the Investigating Officer has to submit case to the concerned Magistrate and the Magistrate concerned has power to discharge them under section 63 of the Cr.P.0 in case of their innocence.
(d)In case he finds the respondents innocent, he would refuse to take cognizance of the matter.
(e)Rule 24.7 of the Police Rules of 1934 makes a provision for cancellation of cases during the course of investigation under the orders of concerned Magistrate. w There are then remedies which are available to accused persons who claim to be innocent and who can seek relief without going through the entire length of investigations.
The learned High Court erred in law in accepting constitutional petition by quashing the FIR at the initial stage which was not in consonance with the law laid down by this Court in the following judgments:- (i) Ghulam Muhammad v. Muzammal Khan and 3 others PLD 1967 SC 317; (ii) Mohsin Ali and another v. The State 1992 SCMR 229; (iii) Abdul Rehman v. Muhammad Yayat Khan and others 1980 SCMR 311; (iv) Marghoob Alam and another v. Shamas Din and another 1986 SCMR 303; (v)
Sheikh Muhammad Yameen v. The State 1973 SCMR 622; (vi) Bashir Ahmad v. Zafar-ul-Islaam and others PLD 2004 SC 298; (vii) Kh. Nazir Ahmad's case AIR 1945 PC p.18; (viii) Shahnaz Begum v. The Honourable Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677 (ix) Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142.
7. While discussing the various provisions provided in Criminal Procedure Code, 1898, it has further been held by the Apex Court that: "According to provisions of Cr.P.C. it is for the Investigating Officer to collect all the facts connected with the commission of offence and if he finds that no offence is committed, he may submit a report under section 173, Cr.P.C. to the Allaqa Magistrate. On the other hand, if on the 'basis of his investigation he is of the opinion that the offence has in fact been committed, he has to submit report accordingly.
However, the report of the Investigating Officer cannot be the evidence in the case. The investigation is held with a view to ascertaining whether or not an offence has been committed.
The inquiry, or trial, as the case may be has to be conducted by the Magistrate. If the police is restrained from investigating the matter, their statutory duty, it will in our opinion be tantamount to acting against the law as held in Kh. Nazir Ahmad's case AIR 1945 PC P.18. The relevant observation is as follows: "Just as it is essential that everyone accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the . offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in the matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police under sections 154 and 156 to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would as their Lordship think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court under section 561-A. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always of course, subject to the right of the Court to intervene in an appropriate case when moved under section 491, Criminal Procedure Code, to give direction in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it and not until then.
This Court has reconsidered and approved the aforesaid judgment in Shahnaz Begum's case PLD 1971 SC 677 and again reconsidered and approved in Brig. Imtiaz's case 1994 SCMR 2142."
It was further observed by the Apex Court that before partition of the sub-continent, the practice of the Courts in such like matters was that:- "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.0 would become redundant.
(ii)To interfere in the sphere allotted to the executive organ.
(iii)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 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. In view of the above dicta of the Honourable Supreme Court, it is held that factual controversies involved in the present cases cannot be resolved in constitutional jurisdiction and similarly deviation from the 'normal procedure of law as provided under the Criminal Procedure Code is not in consonance with the settled principles, besides, when alternate remedies provided under the law are available to the petitioners, constitutional jurisdiction cannot be exercised. Thus, the petitioners were required to have adopted the remedies available to them under the law for redressal of their grievances, as agitated by them before this Court in their respective writ petitions.
Firstly, they have the remedy to appear before the Investigating Officer of the case and put forth their stance regarding their false implication in the case and the Investigating Officer is required under the law to investigate the matter with impartiality and fairness and to collect all available material relating to the offence committed. If in the opinion of the Investigating Officer, no offence is committed, then he has to resort to the procedure provided in the Cr.P.C. and if he forms an opinion that an offence has been committed he has to submit challan in the case before the competent Court of law, as per provisions of law . Secondly, the petitioners, in case of submission of challan against them before the trial Court, can agitate before the trial Court all the grounds taken by them before this Court, if they consider that a false case has been registered against them. In such eventuality, they can seek their 'discharge' in the case even before framing of charge and can move application to the trial Court for their acquittal under section 249-A or 265-K, Cr.P.C.
9. Therefore, keeping in view the peculiar facts and circumstances of the case and discussion made thereupon, the present writ petitions, being bereft of merits, hence dismissed in limine.