M. TABASSUM AFTAB ALVI, C.J.---The captioned writ petition has been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby following prayer is made by petitioners:-- "It is, therefore, prayed on behalf of petitioners that by accepting instant writ petition FIR No,22/12 dated 07.05.2012 lodged with Police Station Trarkhal, District Sudhnooti, Palandri under sections 506, 509, 354 and 109 APC may kindly be quashed/ set-aside.
Any other relief which, this Hon'ble Court deems fit may very kindly be granted in favour of petitioners."
2.The precise facts forming background of the instant writ petition are that respondent No,2, filed a civil suit against petitioner No,1, for recovery of one lac rupees as damages before the learned Civil Judge Trarkhal, on 04.05.2012. It is alleged that on similar grounds respondent No,2, with mala fide intention to harass petitioners, moved an application stating therein that she was student and on 6th October, 2011, when she was going to school her swaddle was forcibly snatched by Muhammad Ayaz (Petitioner No,1), who fall down upon him, when Sadia Shafi (Petitioner No,2), made her picture through his mobile which was not deleted despite assurance and after her marriage the same was sent to her husband on the basis of which she was divorced. She was also threatened by showing pistol that in case of disclosing the incident to anybody else she and her parents. will be taken to task. On the basis of the aforesaid application respondent No,1, registered the impugned FIR No,22/12 under Sections 506, 354, 509 and 109 APC at Police Station Trarkhal, on 07th May 2012. It is stated that the said FIR is belated about 07 months, which is liable to be quashed, hence, the instant constitution petition.
3. The writ petition has been resisted by respondent No,2, through comments which were treated as written statement on request of her learned Counsel, vide order dated 05.07.2012, wherein, it is stated that petitioners have not come to the Court with clean hands therefore, they are not entitled to any relief. It is pleaded that petitioners have an alternate remedy, hence, the instant writ petition is bad in law. It is averred that petitioners have filed instant writ petition in order to linger on their interim bail. The other contents of writ petition have also been refuted.
4. Mr. Asghar Ali Malik, the learned counsel for petitioners vehemently argued that the impugned FIR has been lodged after delay of 07 months, therefore, the same is liable to be quashed on this solitary ground. The learned Counsel pressed into service that a civil suit against petitioner No,1, for recovery of Rs,1,00,000/- as damages was filed by respondent No,2, before Civil Judge Trarkhal, which was dismissed for want of prosecution, hence, on similar grounds the impugned FIR is baseless. The learned Counsel contended that respondent No,2, for mala fide reasons in order to harass petitioners has lodged the impugned FIR, therefore, craved that the same may be quashed.
5. Barrister Humayun Nawaz Khan, the learned counsel for givate- respondent No,2, contended that prima-facie petitioners have committed the alleged offences, which need detailed investigation, therefore, FIR cannot be quashed as such. He argued that delay in lodging of FIR is reasonably explained which is not a good ground for quashment of FIR. The learned Counsel emphasized that petitioners are hardened criminals who are involved in same like criminal activities, therefore, they are not entitled to any relief under law. He maintained that filing of civil suit and its dismissal for want of prosecution never debar criminal liability. The learned Counsel in support of his contentions referred to and relied upon the following case law:-- i.Khadam Hussain v. Abdul Basit and 6 others 2002 M LD 1250 ii.Shan Muhammad v. Mohammad Younis and 4 others [2014 SCR 183]. iii.Ahmed Saeed v. The State and another [1996 SCM R 186]. iv.Raza Ali Mustafa v. Deputy Inspector General Police, Hazara Division, Abbottabad and 7 others [2001 YLR 531] v.Muhammad Afzal and others v. HO Ahmed and others [2005 PCr.LJ 979].
In case of Khadam Hussain, supra, it was held by the Apex Court that the High Court, has no jurisdiction to quash criminal proceedings at the stage of investigation. It was further opined that the High Court, in exercise of writ jurisdiction is not competent to assume the role of investigating agency or the trial Court to give verdict as to whether an accused person has committed an offence or not.
In Shan Muhammad's case, it was opined by the Apex Court that the High Court/Shariat Court while acting under section 561-A, Cr.P.C. has no power to take the roll of investigating agency and declare that the FIR was not correctly registered. It was further observed that if the proceedings are pending before any Court and it appears that there is abuse of process of Court only then it can make order of quashment of proceedings.
In case of Ahmed Saeed, ibid, it was held by the Supreme Court of Pakistan that the High Court, in exercise of its powers under Section 561-A, Cr.P.C., is not competent to quash the FIR. It was further held that High Court under its inherent powers may quash judicial proceedings, if it was of the view that the proceedings amount to an abuse of the process of Court.
In Raza Ali Mustafa's case, ibid, it was observed by the Peshawar High Court, that normally every case should be allowed to proceed according to law and resort to the provisions of section 561-A, Cr.P.C. should not be lightly made, as this would tend to circumvent the due process of law. It was further observed that High Court under section 561-A, Cr.P.C. could not quash the FIR on the ground of mala fides or on the ground that it disclosed civil liability.
In case of Muhammad Afzal and others, supra, it was held by the Lahore High Court, Lahore, that mere delay by itself would not be a ground to quash FIR.
6. After hearing the learned counsel for parties, I have perused the contents of writ petition, scanned the appended documents made available and have given my earnest thought to the points involved in the case in hand.
7. A perusal of the impugned FIR No,22/12 reveals that the same has been registered against petitioners under sections 506, 354, 509 and 109, A.P.C. at Police Station Trarkhal, on 07th May, 2012.
The facts incorporated in the aforesaid FIR, as reproduced in paragraph 02 supra, need detailed investigation. As per my humble view ordinarily FIR cannot be quashed in exercise of writ jurisdiction. After registration of cognisable case, the police C has to collect the material and after thorough investigation it has to submit a report to the Magistrate, whether an offence has been committed or not. If the police reaches to the conclusion that from the material collected, the accused connected with the crime then challan has to be submitted before the competent Court of law. If the police reaches to the conclusion that there is no evidence, it may make a request in its report under section 173, Cr.P.C. to the Magistrate for cancellation of case. Normally FIR must be allowed to be proceeded in accordance with law. A similar proposition came under consideration before the Apex Court in case titled "Khadam Hussain v. Abdul Basit and 6 others" 2002 M LD 1250, wherein, at page 1256, of the report, it was held as under:-- "6. The High Court has no jurisdiction to quash criminal proceedings at the stage of investigation.
It was further opined that the High Court in exercise of writ jurisdiction is not competent to assume the role of investigating agency or the trial Court to give verdict as to whether an accused person has committed an offence or not."
The same view was reiterated by the Apex Court in case titled "Shan Mohammad v. Muhammad Younis and 4 others" [2014 SCR 183). The relevant extract of the judgment at page 194 of the report speaks as follows:-- "The registration of FIR and investigation of case is the sole duty of the police. After registration of a cognizable case, the police has to collect the material and after thorough investigation it has to submit a report to the Magistrate whether the offence has been committed or not. If the police reaches the conclusion that from the material collected, the accused are connected with the crime, then Challan has to be submitted. If the police reaches the conclusion that there is no evidence, it may make a request in its report under section 173,Cr. P. C. to the Magistrate for cancellation of case. The High Court/Shariat Court while acting under section 561-A, Cr.P.C. has no power to take the role of investigating agency and declare that the FIR was not correctly registered. It has powers to interfere under section 561-A, 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 Court, only then it can make order for quashment of proceedings." The contention of the learned counsel for petitioners regarding delay is also misconceived. It, appears from the impugned FIR that petitioners had assured to private respondent that her photograph was deleted from mobile, however, after her marriage by blackmailing the same photograph was sent to her husband, on the consequence of which she was divorced, hence, the aforesaid respondent got registration of the impugned FIR, therefore, delay is properly explained.
The contention is, therefore, overruled.
9. The hub of above discussion is that finding no substance in the instant writ petition the same is hereby dismissed with costs.