SARDAR MUHAMMAD EJAZ KHAN, J.---The captioned petition has been filed for quashment of FIR illat No,02/2017 lodged, in offences under Sections 467/468, 420/465, A.P.C., against petitioners at Police Station, Charhoi, on 17.01.2017.
2. Facts of the case shortly stated are that an application before Deputy Commissioner Kotli, pertaining to tampering in the revenue record has been filed by complainant-respondent No,3 upon which Extra-Assistant Commissioner, Kotli, has been appointed as Inquiry Officer who submitted his report on 20.10.2015 whereupon the concerned Patwaris have been recommended for stoppage of their annual increment as punishment and also held in the said report that petitioners in collusion with Patwaris made tampering in the revenue record and got executed an exchange-deed in their favour. As per the report respondent No,3 filed an application for registration of case at the aforesaid Police Station and thereafter the aforesaid FIR has been registered against petitioners. Feeling dissatisfied due to registration of aforesaid FIR the petitioners constrained to file petition under Section 561-A of Cr.P.C. for quashment of the same on the ground that the same has been filed on fictitious and fabricated grounds. It has been contended that a civil suit filed on behalf of respondent No,3 regarding the same subject matter has also been dismissed for want of proof. It is stated that no cognizable offence has been committed by the petitioners and if the in investigation in furtherance of FIR is allowed, the petitioners will suffer the agony of the trial and also humiliate in the society, hence, by exercising the inherent powers conferred under Section 561-A of. Cr.P.C., the impugned FIR may be quashed.
3. Mr. Mehboob Ellahi Chaudhary, the learned counsel for the petitioners, more or less, reiterated the grounds taken in the petition, and argued that the petitioners are innocent persons and no offence as levelled against them has been committed in offences mentioned in FIR, therefore, the same is liable to be quashed. The learned counsel maintained that at the same time civil and criminal proceedings regarding the same subject matter cannot be initiated according to law whereas the petitioners and Zeenat Begum and others exchanged the suit property through exchange-deed dated 26.04.2013 by filing declaratory suit on behalf of respondent No,3. The learned counsel emphasized that FIR has been lodged by respondent No,3 with mala fide intention in order to victimize the petitioners. The learned counsel emphasized that petitioners are innocent person and have not committed any crime in the offences mentioned in FIR, hence, the FIR illat No, 02/2017 is liable to be quashed. The learned counsel pressed into service that petitioners are aggrieved persons and have got no adequate and efficacious remedy except to invoke the jurisdiction of this Court by-way of filing petition under Section 561-A of Cr.P.C. He finally craved that by accepting the instant petition, the impugned FIR may be quashed. The learned counsel placed reliance upon the following precedents:-- i) M. Naeem v. The State through Prosecutor-General, Province of Sindh [2010 P.Cr.LJ (Karachi)
1039]; ii) Sheikh Muhammad Tahir v. The State and 2 others [2012 PCr.LJ (Islamabad) 1075]; iii) Abdul Jabbar v. The State thorugh Assistant Advocate General Kotli and 2 others [2014 PCr.LJ (AJ&K) 1]; and iv) Gul Muhammad v. The State [2015 PCr.LJ (Sindh) 1329].
4. Raja Masood Khan, the learned counsel for respondent No,3 while controverting the arguments raised on behalf of petitioners and submitted that the petitioners are nominated in the FIR and a specific role with regard to preparing and manipulating the revenue record in collusion with Revenue Staff has been attributed which is obvious from the inquiry report made by Extra-Assistant Commissioner whereupon they have been punished by stopping their annual increments, hence, a criminal case has rightly been established against the petitioners and at this stage under law FIR cannot be quashed. The learned counsel pressed into service that at this stage if the investigating agency is stopped to take cognizance upon the matter which is not justifiable and appreciable in the given circumstances, hence, if they prove their innocence before the concerned poILe, in fact an alternate remedy is available to them and both civil and criminal proceedings carry parallel, hence, none of the proceeding can take effect either on civil or criminal. The learned counsel maintained that FIR has rightly been lodged against petitioners, therefore, the petition under section 561-A of Cr.P.C. may be dismissed.
5. Mirza Muhammad Saeed, the learned Assistant Advocate General appearing on behalf of the State submitted the relevant record and fully owned the arguments advanced on behalf of the learned counsel for respondent No,3 and contended that the accused-petitioners are nominated in the impugned FIR. The learned counsel craved that the investigation of the case cannot be stopped at this stage because the accused-petitioners are fully connected with the commission of offence. The instant petition for quashment of the aforesaid FIR is bad in law, which is liable to be dismissed.
6. I have heard the learned counsel for the parties and gone through the record of the case with due care and caution.
7. A perusal of record shows that an FIR illat No,02/17 was lodged at Police Station, Charhoi, on 17.01.2017 at about 07:00 P.M. wherein the accused-petitioners were levelled the allegation of having tempered revenue record in collusion with Revenue Staff upon which an Inquiry Officer was appointed by Deputy Commissioner, Kotli, and after conducting inquiry a report was prepared and submitted to Deputy Commissioner, Kotli, whereupon competent authority imposed penalty by stopping annual increments of the concerned Patwaris.
8. It is an admitted fact by visualizing the record that the parties are in litigation in the Civil Court with regard to the exchange-deed 26.04.2013 challenged by one Ali Akbar, respondent No,3, which has been dismissed for want of proof. As the petition was decided by this Court vide judgment dated 29.03.2017 on the point that under Section 195 (C) of Cr.P.C. the said Court was competent to direct the relevant authority for initiation proceedings and the petitioners were exonerated from the charges levelled against while quashing the FIR against which respondent No,3 filed PLA before the Apex Court on 29.04.2017 wherefrom the case was remanded back to this Court with the direction that: "In view of above settled law, provisions contained in section 195, Cr.P.C. cannot be invoked in this case because the alleged tempering in the record and preparation of the exchange-deed was made prior to the institution of the suit, hence, has no nexus with section 195, Cr.P.C.
As no order has been passed on any other ground raised in the application for quashment of the FIR, therefore, while setting aside the impugned judgment, the case is remanded to the learned High Court for passing fresh order on the application filed under section 561-A, Cr.P. C."
9. It is worthwhile to mention here that I am clear in my mind that both civil and criminal proceedings can simultaneously be run which do not effect on each other because both the forums to take cognizance upon the similar matter have different dimensions and parameters, hence, where the forgery or fraud appears to have been committed during the pendency of suit, the said Court is empowered under Section 195(C) of Cr.P.C. to direct the concerned authority for initiation of contempt proceedings but in the instant case the alleged forgery appears to have been committed prior to filing of suit and registration of FIR. So, in my considered view after the dismissal of declaratory suit by which the exchange-deed dated 26.04.2013 has been challenged, criminal proceedings cannot be stopped.
10. Without going to the other aspects of the case, this Court has to see whether the aforesaid FIR can be quashed under Section 561-A or nor? It is well settled principle of law that the inherent jurisdiction of this Court under Section 561-A, Cr.P.C., is neither alternative nor additional in its character and is to be rarely invoked only in the interest of justice so as to seek redressal of grievance for which no other procedure is available and that provision should not be used to obstruct or divert the ordinary course of criminal procedure. Section 561-A, Cr.P.C., confers upon this Court inherent powers to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice. These powers are very wide and can be exercised by this Court at any time. Ordinarily, this Court does not quash proceedings' under Section 561-A, Cr.P.C., because the matter is subjudice before the Investigating Agency and the said agency cannot be stopped to proceed further in the matter in hand, however, in exceptional cases this Court can exercise its jurisdiction under Section 561-A, Cr.P.C. This Court cannot sit as an investigating agency or trial Court to determine truthfulness or falsenesses of implications of the accused-petitioners in the FIR. For having true perception, I would like to reproduce Section 561-A of Cr.P.C, which is reproduced as under,- "561/A.,Cr.P.C. Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
It is apt to state here that this Court can quash an F.I.R. under Section 561-A of Cr.P.C., in the presence of the following ingredients:- 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; and v. Inordinate delay amounted to abuse of process of Court has been made.
Whereas, the Court eannot quash an FIR under Section 561-A of Cr.P.C., in such like circumstances:- - i. Where the case is at the stage of investigation; ii. In presence of cognizable offence; iii. When the accused-person has been found to be guilty and the trial is in motion; iv. When the challan under Section 173, Cr.P. C. has been submitted before the competent Court of law; and v. Where an alternate remedy under Section 249-A of Cr.P. C. is available to the accused-person.
11. It is for the Investigating Agency to determine the question of truthfulness and correctness of the alleged forged documents. This question requires recording of evidence, obviously it is not the function of this Court to record the evidence and give finding on that. The case law referred to and relied upon by the learned counsel for the petitioners is distinguishable due to peculiar circumstances of the instant case and is not applicable because every case has its own facts, which does not demand to discuss here in detail. As per law laid down by the Apex Court in case titled "Shan Muhammad v. Muhammad Younis and 04 others" [2014 SCR 183], against FIR ordinarily quashment petition is not maintainable. The relevant portion of the judgment, at page 194 of the report, is reproduced as under:- "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".
12. The logical inference of the above discussion is that the object of law as enshrined by Section 561-A of Cr.P.C. is not to do the function of Investigating Agency, therefore, the instant petition, having no substance, is hereby dismissed.