SYED ARSHAD ALI, J.---Through the instant writ petition, the petitioners seek constitutional jurisdiction of this Court, wherein they have set the following prayer for adjudication of this Court:- "It is therefore, humbly prayed that by accepting the instant writ petition:-
1. Order/letter No. 5-A No. 214 Co-ACE Swat dated 01.08.2018 issued by Respondent No. 1 be declared as illegal, unconstitutional and uncalled for and Respondents Nos. 1 to 3 be restrained from taking or demanding original registry deed No. 104 attested on 26.03.2018 from the petitioners.
The three separate inquiries initiated by respondents Nos. 1, 4, 5 and 7 qua genuineness of the registered deed No. 104, which is subject-matter of civil litigation pending adjudication, may kindly be suspended/stayed till the final decision of the civil suit and they may be restrained from any kind of interference in this respect.
3 Any other relief though not been specifically prayed for and for which the petitioners are otherwise entitled under the Constitution, may also very graciously be granted, please.
2. It is averred in the petition that the respondent No. 10 is the real father of the petitioners who through registered deed dated 26.03.2018 distributed his entire property among his children. On the basis of the said deed, entries were made in the revenue record, however later, the respondent No. 10 had filed a civil suit wherein the aforesaid registered deed was challenged. Simultaneously , during the pendency of the suit, he has approached different revenue fora for cancellation of the said deed including the respondent No. 1 i.e. Circle Officer Anti-Corruption Establishment Swat who has initiated inquiry into the matter . Indeed, through this petition, the petitioners are aggrieved of the initiation of inquiry against them in respect of the deed despite the pendency of the civil suit.
3. Pre-admission notice was issued to the respondents. On behalf of the official respondents the learned Assistant Advocate General has appeared, whereas the respondent No. 10 was represented by his learned lawyer who has filed additional documents through C.M. No. 1477-M of 2018, however , the respondent No. 10 today was also present in Court.
4. The main focus of the arguments of the learned counsel for the petitioners was that when the issue relating to the impugned registered deed is directly and substantially an issue before the civil Court which too was initiated by the respondent No. 10, then cognizance by the respondent No. 1 in the matter is unwarranted. In support of their claim they have placed reliance on "Allied Bank Limited through Manager v. Anti-Corruption Establishment and 4 others" (2018 CLD 145 ).
5. Conversely , the learned counsel appearing on behalf of the respondents while rebutting the arguments of learned counsels for the petitioners has relied upon "Muhammad Akbar v. The State and another" (PLD 1968 Supreme Court 281) and "Firdos Aziz v. Asif Aziz and 3 others" (2018 PCr.LJ 392) and have further argued that it is settled law that both proceedings civil and criminal can move side by side and there is no bar on the jurisdiction of investigation agencies to investigate criminal of fence in presence of civil litigation.
6. Arguments heard and record of the case was perused with the able assistance of learned counsel for the parties.
7. It is evident from record that the present petitioners, who are 4 in numbers are the real sons of the respondent No.10 Juma Dost. The bone of contention between the parties is a registered deed titled "Taqseem Iahdad Zarahi " dated 26.03.2018. The close perusal of this deed would show that respondent No. 10 had distributed his certain properties among his children including the petitioners as well as his other daughters. This registered deed was allegedly executed by appointing a local commission and according to the report of commission which is available at the back of the said deed the present respondent No. 10 has thumb impressed the same. On 18.04 2018, the respondent No. 10 has filed a suit for cancellation of the deed and attestation of the mutations on the basis of the said deed before the civil Court at Swat. The present petitioners are contesting the said suit.
8. During the pendency of the said suit, the respondent No. 10 has filed a criminal complaint before the respondent No. 1, Circle Officer Anti-Corruption Establishment Swat, who has taken cognizance of the matter and even got recorded the statement of the respondent No. 10 Juma Dost under section 164, Cr.P.C. before the Magistrate concerned. wherein he has attributed the offence of fraud to the present petitioners as well as the government officials. During the said investigation/ inquiry , the Investigation Officer has issued notices to the present petitioners which has been challenged before this Court.
9. In essence, the claim of the petitioners is for quashment of the inquiry being conducted by the respondent No. 1, Anti-Corruption Establishment in the present matter on the ground that since respondent No. 10 has himself invoked the jurisdiction of the civil Court, therefore, .inquiry by the respondent No. 1 in the alleged offence is unwarranted.
10. The close perusal of the allegations contained in the statement of the respondent No. 10 recorded under section 164, Cr.P,C. would show that he has alleged that through deed dated 26.03.2018 he was deprived of his property by the petitioners in connivance with the revenue officials at his back. Hence, the perusal of the said allegation prima facie would constitute a cognizable offence which can be inquired into and investigated by the Anti-Corruption Establishment of the Khyber Pakhtunkhwa which has been establis hed under section 3 of the West Pakistan Anti-Corruption Establishment Ordinance. 1961 ("Ordinance of 1961"). Anti-Corruption Establishment has the exclusive domain under the Ordinan ce to investigate certain offences relating to corruption by the public servants and their accomplices. Hence the assumption of jurisdiction by the respondents i.e. Anti-Corruption Establishment is within their jurisdiction, as in the matter in hand the prima facie connivance of the public servants is obvious (subject to proof).
11. It is settled law that the constitutiona l Court has no jurisdiction whatsoever to take the role of Investigation Agency and to quash the FIR in its constitutional jurisdiction except in certain exceptional circumstances which inter-alia includes the lack of jurisdiction of the Investigation Agency . In this regard, relianc e can be placed on the case of august Supreme Court of Pakistan titled "Shahnaz BeRum v. The Hon'ble Judges of the HiR1t Court of Sindh and Balocistan and another (PLD 1971 Supreme Court 677)". wherein it was held:- "High Court has power no under section 561-A to interfere with police investigation into criminal offence."
Similarly , in "Brig. (Rtd.) Imtiaz Ahmad's case reported as 1994 SCMR 2142 the august Supreme Court of Pakistan has held that:- "The function 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.
Control over the investigation exercised by the Court was prejudicial to the accused and detrimental to the fairness of the procedure apart from being without jurisdiction. High Court cannot assume the role of investigator . This could obviously not be done, for the authority to register and investigate a criminal case in law vests in the police and not in Court."
Similar view is also reflected in case titled "Dr.Ghulam Musra& v. The State" (2008 SCMR 76), wherein it was observed by the august Supreme Court of Pakistan:- "High Court has no jurisdiction whatsoever to take the role of the investigating agency and to quash the FIR, while exercising constitutional power under Article 199 of the Constitution or under section 561-A, Cr .P.C. unless and until very exceptional circumstances existed."
12. As far as the arguments of learned counsels for the petitioners regarding the simultaneous proceedings of one issue before two fora i.e. civil Court and criminal Court are concerned, we humbly feel that the said arguments at this stage are premature. However , the august Supreme Court of Pakistan in certain cases have issued directions for staying of criminal proceedings pending decision of a civil Court on the similar subject. Nevertheless, there is no rule of thumb that in all circumstances and in every case as a matter of course when civil litigations are pending on the same subject-matter , the criminal proceedings ought to be stayed. In this regard, reliance can be placed on "Akhlaq Hussain Kiyani v. Zafar Iqbal Khan Kiyani " (2010 SCMR 1835 ), wherein it was held by the august Supreme Court of Pakistan:-"Although civil liability is independent of the criminal liability and no invariable rules exist to the effect that pending decision of a civil suit criminal proceedings must be stayed as it is purely a matter of discretion yet, while exercising the discretion, the guiding principle should be to see as to whether the accused is likely to be prejudiced if the criminal proceedings are not stayed but it is clear that the criminal liability is dependent on the outcome of civil litigation, then criminal proceedings must be stayed, particularly , when dispute is with regard to title of the property ."
However , at this stage, the criminal Court has so far not taken cognizance of the matter and the present matter is at inquiry and investigation stage and in view of the law laid down in Shahnaz Begum's case reported as PLD 1971 Supreme Court 677, "Brig. (Rtd.) Imtiaz Ahmad's case reported as 1994 SCMR 2142 and "Dr.Ghulam Mustafa v.
The State " (2008 SCMR 76), we are not inclined to interfere in investigation of the competent authority i.e. Anti- Corruption Establishment Swat.
13. In view of the above discussion, this writ petition has got no IF force. which is accordingly dismissed.