AHMED ALI M. SHAIKH, J.--By invoking the Constitutional Jurisdiction of this Court, petitioners Noman Junejo and Rehan Junejo, both sons of slain District and Sessions Judge, Nabi Sher Junejo, residing in Chicago, USA, through duly constituted attorney in Pakistan Moin Jamal Abbasi, have filed instant petition seeking following reliefs:- "A. to declare that the lodging of the FIR and all steps taken in pursuance thereof are illegal, unlawful and are tantamount to malicious prosecution and to set aside the same.
B. to direct the respondents to refrain from taking any further steps in pursuance of the FIR and/or the Interim Charge Sheet, including but not limited to the lodging of any fresh FIR against the petitioners.
C. to permanently restrain the respondents and/or any person acting under them, whether directly or indirectly from interfering with or causing any harassment to the petitioners with respect to or in connection with the subject matter of the FIR or any ancillary matters in relation thereof.
D. to grant any other relief, additional and/or moulded as this Hon'ble Court may deem fit or proper in the circumstances of the case.
E. to grant costs of the petition."
2. Brief facts of the case are petitioner No,1, after completing Master in Computer Science from Illinois Institute of Technology in Chicago, joined Blackstone Group in Chicago in 2004. Through their hard work, labour and determination petitioners along with other family members on 13.9.2004 obtained US$ 1,350,000/- as loan in the name of their company E Intelligence USA Corporation for managing and operating petrol pump in Chicago, which later flourished to three petrol pumps.
They have also purchased an apartment No,1310 40-East, 9th Street, Chicago 60605, Illinois, a sum of US$ 560,000/- and by virtue of investment in property business, a restaurant has also been established in one of three petrol pumps owned by them. Apart from above properties/assets, in March, 2006, petitioner No,1 also acquired/ purchased two bungalows ad-measuring 300 square yards each, located at C-60 and C-60/1, Block 2, Clifton, Karachi, and in May 2009 appointed his real brother Farhan Junejo as attorney to manage and look after the said properties. Since acquisition, the two bungalows in Karachi have been leased out to M/s Transasia Refinery (Pvt) Ltd., which fetched approximately Rs,3 Million every eleven months as rent and one Hanif Khatri, manager of assets of Junejo family, used to remit the said amount to Petitioner No,1 in USA. Copies of conveyance deed, general power of attorney, lease agreement, various payment slips/cheques and income tax receipts have also been annexed with the memo of petition. Further averments made in the petition are that petitioners during last decade or so neither visited Pakistan nor at any material time got employment in any organization, body or corporation, administered either by the Federal or Provincial Government.
3. To the utter surprise of petitioners, on 31.8.2013 respondents Nos,2 and 3 lodged FIR No,20/2013 under Sections 161 164, 165, 165(A), 109 of the Pakistan Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947 and Sections 3 and 4 of the Anti-Money Laundering Act, 2010, in which petitioner No,2 has been nominated as accused being beneficiary of crime proceeds. It is further averred that the allegation leveled in the FIR is that Farhan Junejo, brother of petitioner, served as a Director to the Commerce Minister, Ministry of Commerce, Government of Pakistan, somehow involved in "corruption and corrupt practices" also committed offences of money laundering by sending the proceeds of such crime to his family members abroad. Subsequently, on 16.9.2013, pursuant to submission of an interim charge-sheet in which petitioner No,1 has been included as one of the accused for transaction dated 21.11.2009 in the sum of US$ 30,000 sent to him by his Manager Hanif Khatri, the trial Court added Sections 468 and 471, P.P.C.
4. Petitioners also pleaded that their manager Hanif Khatri used to send foreign remittances to petitioner No,1 in USA, including the transaction dated 8.2.2012 in the sum of Rs,919,000/- amounting to US$ 10,000 was remitted to petitioner No,2 in lieu of repayment of loan taken by him from petitioner No,1 and likewise on 21.11.2009 petitioners' manager remitted US$ 30,000/- as proceeds earned by petitioner No,1 from properties owned by him in Pakistan whereas in the year 2010 Farhan Junejo, brother of petitioners, was appointed as Director to Minister of Commerce. While denying the story narrated in the FIR being witch hunting and political victimization, petitioners averred that at the behest of the respondent, the Homeland Security in USA has been asked to identify assets of their brother and Interpol has been moved for issuance of red warrants for their arrest and petitioners apprehending their imminent arrest and freezing of their assets in USA, petitioners through attorney approached this Court for declarations, inter alia, that the aforesaid FIR and all steps taken in pursuance thereof are illegal, unlawful and tantamount to malicious prosecution.
5. On 3.10.2013, notices were issued to the respondents and DAG and on 24.3.2014 parawise comments to the petition were filed. In the comments the respondents stated that while conducting investigation in respect of misappropriation of Government Funds of billions of rupees by the then high-ups of Trade Development Authority of Pakistan (TDAP) and other beneficiaries, it transpired that absconding accused Farhan Junejo, brother of petitioners, illegally transferred Rs,250 Million of crime proceeds through hundi to his account No,18498715201, maintained at Standard Chartered, Dubai Branch, and similarly siphoned ill-gotten money in the accounts of his family members maintained in U.K., USA and Switzerland. The respondent further alleged that out of the ill-gotten siphoned abroad by accused Farhan Junejo, the petitioner Noman Junejo purchased properties here and abroad in his name. The respondents further alleged that in essence the so- called Manager of petitioners, Hanif Khatri, a police constable , is an absconder.
6. Learned counsel for the petitioners contended that entire prosecution story is based on conjecture and surmises; that the petitioners have nothing to do with the corruption or misappropriation of billions of rupees in TDAP as they never visited Pakistan during last decade nor they were at any point of time were public servants in any body, corporation or organization administered by either Federal or Provincial Government; that there is no cogent correlation, association or nexus between the alleged scam in TDAP and remittances made to petitioners; that there is no possibility of the petitioners being convicted of the alleged offences as there is no evidence connecting the petitioners with alleged money laundering, corruption, etc; that accused Farhan Junejo has played no role in the alleged misappropriation of funds in TDAP during 2010-2012 nor the prosecution named alleged accomplices of the Farhan Junejo; that the prosecution has failed to collect any evidence or material either against the petitioners or Farhan Junejo connecting him with the alleged transfer of money through hawala; that the lodging of FIR and steps taken in furtherance thereof are nothing but abuse of administrative powers conferred on respondents; that the registration of FIR and further actions taken by the respondents violates the fundamental rights of the petitioners guaranteed under Articles 4, 9, 10- A, 14, 18, 23, 34 and 25 of the Constitution; that the respondents have lodged malicious prosecution against the petitioners, therefore, the respondents be restrained from taking further steps pursuant of registration of FIR and interim charge sheet submitted before the trial Court; that on account of actions of the respondents, the petitioners suffered irreparable huge loss in the business and the stigma created against them in pursuance of investigation/action taken by Homeland Security, USA/Interpol to identify assets and arrest the petitioners; that there is no absolute bar for grant of discretionary/equitable relief to persons who are fugitives from law and factum of abscondence does not come in their way, therefore, instant FIR be quashed. He in support of his contention placed reliance on the cases reported in 1991 SCMR 322, 1992 PCr.LJ 72, 1992 PCr.LJ. 58, 1999 PCr.LJ 191, 2003 YLR 1915-, PLD 2004 Lahore 65, PLD 2007 Karachi 127, 2009 SCMR 299, 2012 SCMR 1137, 2012 SCMR 1273, 2013 YLR 2230, 2014 YLR 2532 and 2014 PCr.LJ 396.
7. On the other hand, learned DAG has contended that accused Farhan Junejo, an Ex-PCS Officer of BS-18, was appointed as Assistant Commissioner BS-17 in the year 1991. In 2008 the then Commerce Minister, in violation of rules, inducted/posted him as Director in the Ministry, therefore, the Accountant General of Pakistan did not allow him to draw salary and other perks and privileges and surprisingly he served for more than three years without salary and other allowances just to accomplish his nefarious design of corruption; that petitioner Noman Junejo, real brother of the absconding accused Farhan Junejo is front-man and has purchased properties here and outside from the crime proceeds remitted or transferred to petitioners through hundi; that 161 statement of Sarfraz Haroon and Hashim Haroon, previous owners of properties bearing Nos,C-60 and C-60/1, Block No,2, Clifton, Karachi, shows that accused Farhan Junejo paid the sale consideration through cheques, pay orders, both in local and foreign currencies, drawn from NIB Bank's Kulsoom Court Branch and Clifton Branch, NDLC-IFIC Bank Limited and the Investigation Officer has also collected sufficient evidence in this regard; that accused Farhan Junejo, initially transferred the properties in the name of Noman Junejo and later obtained General Power of attorney from him and rent fetched from progerties C-60 and C-60/1 directly went into the account of Farhan Junejo; that another absconding accused Hanif Khatri, so called manager of petitioners, in fact a police constable and gunman of accused Farhan Junejo, opened foreign currency account No,3100100-1 and during period 20.11.2009 to 13.5.2011 siphoned through outward foreign telegraphic transfer, US$ 30,000/- in the accounts of petitioner Noman Junejo and 40,000 UK pounds to the account of Beenish Qureshi, wife of accused Farhan Junejo; that on 25.9.2009 amount of US$ 60,000/- was transferred to petitioner Noman Junejo from account No,0004-0207799-0201 (new Account No,1794078) of NIB Bank Court Kulsoom Branch, Karachi, title Farhan Junejo; that petitioner Rehan Junejo received US$ 10,000/-through Hawala via Bank of America, USA account No,002917077632 TT through Wallstreet Exchange Center LLC Dubai, UAE, which transaction also culminated on Farhan Junejo; that the superior Courts do grant relief to fugitives provided they surrender themselves before the Court of law while in the instant case petitioners, residing abroad, opted to file petition seeking extraordinary relief from this Court through attorney while accused Farhan Junejo and his gunman Hanif Khatri are still absconders, therefore, the instant petition be dismissed.
8. We have heard the learned counsel for the petitioners, DAG and scanned the record placed before us. Admittedly, the investigation has not completed as yet and on the basis of evidence collected so far the respondents filed interim charge sheet, which culminated into additions of Sections 468 and 471 P.P.C. and indictment of petitioner No,1 as well. Moreover, in the instant case Farhan Junejo and manager of petitioners Hanif Khatri, residing here, absconded while case against the .accused persons largely hinges on documentary evidence and it has not been pleaded by the petitioners that the FIA has no authority to inquire or probe into the matter or the respondent have exceeded from their jurisdiction. The learned counsel has argued that the prosecution initiated by the respondents is based on malice but could not dilate this issue or bring on record material to show that the petitioners have been victimized or the prosecution case has no basis.
9. Throwing out the FIR, largely based on documentary evidence, without giving an opportunity to the prosecution to prove the allegations by adducing evidence, would be improper in exercise of powers under Article 199 of the Constitution and would amount to serious departure from normal course. Besides any deviation from normal path is always pregnant with risk of being led astray.
The petitioners seeking extra ordinary relief, could not demonstrate sufficient grounds to attract quashment of FIR in the given circumstances. We may also observe that if the respondents are restrained from investigating the matter, their statutory obligation and duty, it will tantamount to acting against the law. It is also settled that this Court is quite reluctant in quashing the FIR under Constitutional Jurisdiction as such exercise of powers would create chaos for a summary disposal of case may culminate into injustice.
10. Apart from above, it is settled law the this Court cannot interfere in the investigation and 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 the High Court and accepting the petition would amount to short circuiting the normal procedure of law as envisaged in Cr.P.C. It is also settled law that constitutional petition can only be filed if no alternate efficacious remedy is available to the petitioner. However, in the instant case, neither the petitioners, who are living abroad, nor the absconding accused have even appeared before the trial Court or the Investigating Officer to prove their innocence and in the circumstances of the case, alternate remedies as provided in Criminal Procedure Code are available to the petitioners.
11.During course of arguments learned counsel for the petitioners in support of his contention that there is no absolute bar for grant of discretionary/equitable relief to persons who are fugitives from law and factum of abscondence does not come in their way has cited a number of reported cases, but the said case law is of no help to the petitioners as these relate to grant of bail that too, inter alia, when investigation has been completed.
12. Lastly, filing constitution petition through attorney seeking equitable and extraordinary relief of quashment of FIR from this Court by petitioners living abroad is alien to law. Moreover, in view of above, we are of the opinion that when there is a conflict between law and equity, t s the law which is to prevail. Equity can only supplement the law when there is a gap in it, but it cannot supplant the law.
For the foregoing reasons and also relying on the dicta laid down by the honourable Supreme Court in the case of Shah Sadiq v. Muhammad Ashiq reported in 2006 SCMR 276, we do not find any force/merit in the petition, which is accordingly dismissed in limine along with listed application.