1. M. Tabassum Aftab Alvi, C.J.--The captioned Writ Petitions have been addressed under Section 44 of the Azad Jammu and Kashmir Interim Constitution, 1974. In Writ Petition No. 945/2018, dated 09.05.2018, petitioners, Yasin Baig and two others, seek quashment of FIR No. 68/2018, dated 05.05.2018, with the following prayer: "It is, therefore, prayed on behalf of petitioners that this Hon'ble Court may very graciously be pleased to issue high prerogative writ declaring the FIR No. 68/2018, dated 05.05.2018, registered at Police Station Hajira, District Poonch, as without lawful authority without jurisdiction, having no legal consequence and the same may kindly be quashed directing the non petitioners not to proceed in furtherance of FIR dated 05.05.2018."
2. However , in Writ Petition No 1074/2018, dated 31.05.2018, petitioner , Yasin Baig, made request for setting aside the report of Commission dated 30.04.2 018 and Government notification dated 23.05.2018, with the following prayer: "It is, therefore, humbly prayed that by accepting the writ petition the report of the commission dated 30.04.2018, as is against law, rules and T.O.Rs of the mandate which was given by the authority to the commission may kindly be declared illegal, unjust against the law, rules and discriminatory one be set aside the same consequently the notification dated 23.05.2018, may also be set-aside."
3. As common questions of facts and law are involved in both the Writ Petitions, therefore, these are being consolidated and decided through this single judgment.
4. Precise facts culminating into filing of the instant Writ Petitions are that petitioners are 1st Class State subjects, who are incumbents as Senior Superintendent of Police, District Poonch, Assistant Commissioner and Tehsildar Hajira, respectively. It is stated that Jammu Kashmir Liberation Front (JKLF) called a long march with the name and style of peace march on 16.03.2018, which was scheduled to be observed from Tattapani to Madarpur and it was assured by leadership of JKLF that participants of long march would not move ahead from Dhar Bazaar. However, later on, participants of the said march violated their commitment, who commenced to travel towards Sehr-Kakuta-Bridge and ultimately reached on the aforesaid bridge in front of Line of Control, (LOC). Thereafter, they further tried to go ahead towards LOC, hence, owing to intensive situation existed at Control Line, petitioners, being District Administration, took measures to prevent protesters in order to save their lives, as well as, the lives of population living around the LOG, meanwhile, they became enraged, who started firing, as well as, pelting stones and also set on fire in the Check Post Sehr-Kakuta, hence, large number of police personnel and civilians amongst protesters sustained injuries, who were rescued and referred to the nearest Hospital. One injured, namely , Naeem Butt, was referred to PIMS Hospital Islamabad. Against the said occurrence an FIR Bearing No. 40/2018 in the offences under Sections 353, 324, 186, 337, 147, 148, 149, 436 and 427, A.P.C. was lodge d by Hassan Wazir Afridi, SHO, at Police Station Hajira, on 16.03.2018. However , Muhammad Naeem Butt, injured, after 05 days of occurrence died, hence, the people of vicinity made demonstrate at Rawalakot City and demanded to constitute a judicial commission for inquiry into the matter . Thereupon, a Judicial Commission consisting of Mr. Justice Muhammad Sheraz Kiani, J, was constituted by Government vide Notification dated 22.03.2018. It is averred that Government- respondent constituted commission to inquire into the matter by fixing 04 Terms of Reference (ToRs). It is further added that commission started its proceedings on 26.03.2018, later on, summoned witnesses, recorded their statements and collected relevant record, as well as, evidence, however , submit ted its inquiry report for further proceedings to the competent authority against 04 terms of references, on 30.04.2018; hence, petitioners submitted for setting aside the impugned commission report, as against facts and law. However , in the meantime, Muhammad Nisar , non-petitioner No. 6, who is brother of Muhammad Naeem Butt, deceased, submitted a written application at Police Station Hajira, on 05.05.2018, praying therein that in light of judicial inquiry , an FIR may be lodged against petitioners and other involved officials. Thereupon, FIR No. 68/2018, dated 05.05.2018, in offence under Section 302, A.P.C., was registered. Now, petitioners, Yasin Baig, Mumtaz Hussain Kazmi and Mushtaq Ahmad Khan, have filed Writ Petition 945/2010, dated 09.05.2018, for quashment of the aforesaid FIR No. 68/2018, dated 05.05.2018, whereas the other Writ Petition NO. 1074/2018, dated 31.05.2018, has been filed by Yasin Baig, petitioner , for setting aside the report of Commission dated 30.04.2018 and Government notification dated 23.05.2018, which are the subject matter of the instant judgment.
4. The Writ Petition No. 945/2018, has been resisted by private respondent-complainant, through written statement, wherein, it is stated that the instant writ petition is not maintainable in presence of alternate and efficacious remedy under law. It is mentioned that disputed questions of facts have been alleged by petitioners, which require detailed investigation; hence, the same cannot be resolved while exercising extraordinary jurisdiction under constitution. It is contended that petitioners have come to the Court with unclean hands; hence, they are not entitled to equitable relief of writ jurisdiction. It is further claimed that the instant writ petition is not maintainable due to non joinder of necessary party in line of respondents, hence, submitted for dismissal of the same.
5. The Writ Petition No. 1074/2018, has been resisted by official respondents through written statement, wherein, it is pleaded that petitioner is not an aggrieved person who failed to point out any infringement of his legal right, hence, he is not entitled to invoke constitutional jurisdiction of this Court. It is further stated that petitioner failed to point out any violation of law, rules or regulation on the subject, therefore, writ petition is not competent. The other contents of writ petition have also been refuted by respondents, who submitted for dismissal of the petition.
6. Sardar M.R. Khan, the learned Counsel for petitioners in Writ Petition No. 945/2018, filed written arguments, wherein, it is submitted that Jammu Kashmir Liberation Front (JKLF) called a long march with the name of peace march on 16.03.2018, which was scheduled to be observed from Tattapani to Madarpur and it was assured by leadership of JKLF that participants of long march would not move ahead from Dhar Bazaar; however, later on, they violated the aforesaid commitment, who moved towards Sehr-Kakuta-Bridge and ultimately they reached upon the said bridge in front of Line of Control, from where they further tried to go ahead towards LOC, hence, owing to intensive situation existed at Control Line, the police stopped them and in reply they started firing, pelted stones and set on fire upon the Check Post Sehr-Kakuta, in consequence of which, a large number of civilians and police received injuries, amongst them Muhammad Naeem Butt, was also an injured-person, who was referred to PIMS Hospital Islamabad, where he succumbed to the injuries. He pointed out that regarding the aforesaid incident an FIR No. 40/2018, was got registered, which also indicates about Muhammad Naeem Butt, injured. It is contended that on protest of the people of locality second FIR No. 68/2018, dated 05.05.2018, was registered regarding the aforesaid incident after delay of 01 month and 19 days, without any explanation, which was registered with mala fide intention just to protect the civilians involved in firing and hurling stones. It is further pointed out that as per contents of the impugned FIR, petitioners were directly involved in the incident whereas according to report of commission, initiation of proceedings against other police personnel, were recommended; hence, if contents of FIR are deemed correct, then report of commission is not true, and if report is considered correct, then FIR No. 68/2018, is not sustainable. It is submitted that according to the aforesaid FIR, allegation levelled against Yasin Baig, SSP, was that he took Kalashnikov from a policeman and started firing, alongwith other police personnel, upon public gathering, due to which, Muhammad Naeem Butt, and others received injuries, whereas according to report of commission, it was not proved that Yasin Baig, himself fired shots with Kalashnikov, rather according to the said report, personnel of squad 15, who were performing duty with Yasin Baig, fired shots in presence of DC and SSP, as they were under supervision of SSP, hence, he ordered them to fire and in support of the aforesaid arguments, he referred to Page No. 19, Paragraph No. 2 and Page No. 23, Paragraph No. 3, of the report of commission; therefore, after taking into juxtaposition the contents of the aforesaid FIR and the report of commission, it appears that a concocted story was formed. The learned Counsel agitated that allegation against SSP, for giving oral order of firing to his subordinates, is not justified, because it is clear from record that Magistrate passed written order of aerial firing. The learned Counsel also submitted that ammunition which was given to police was not used, rather the same live rounds were returned by them to the concerned authority; hence, petitioners were involved with assumption just to cause dent in their service record. He maintained that Petitioner No. 1, being a responsible officer of the State, went at the spot to protect protestors from Indian firing, but he was implicated in firing upon protesters. He contended that according to commission report, petitioners were neither held responsible nor found involved in the aforesaid incident; therefore, by accepting Writ Petition No. 945/2018, the impugned FIR No. 68/2018, may be quashed.
7. Conversely, Raja Ayyaz Ahmad Khan, the learned Assistant Advocate General, appearing on behalf of official respondents, also filed written arguments, wherein, it is submitted that an FIR cannot be quashed during the course of investigation. It is further contended , that petitioners have no locus standi to invoke extraordinary constitutional jurisdiction of this Court, as they do not fall in the definition of aggrieved persons; hence, petition is not maintainable in the eye of law. He added that petitioners, herein, are involved in heinous offence of murder, which also falls within the prohibitory clause of Section 497, Cr.P.C.; hence, they should join investigation before the relevant investigating agency. He further submitted that FIR was rightly registered against petitioners, because when cognizable offence is committed, it is duty of investigating agency to register FIR against accused-persons. It is emphasized that petitioners are guilty of misstatement, as well as, suppression of material facts from the Court; hence, not invoked jurisdiction of this Court with clean hands. It is also contended that petitioners failed to point out violation of any law and rules on the subject; therefore, writ petition is bad in law; hence, submitted that writ petition may be dismissed.
7. Barrister Humayun Nawaz Khan, the learned Counsel for complainant-private Respondent No. 6, in Writ Petition No. 945/2018, also filed written arguments, wherein, it is contended that petition is not maintainable due to availability of alternate and efficacious remedies under law. He submitted that according to the verdict of the Apex Court, no writ petition or application under Section 561- A,Cr.P.C. is competent for quashment of F1R; hence, both the petitions merit dismissal. He pointed out that judicial commission, comprising of Judge of this Court, gave findings, which were notified vide Govt. notification dated 23.05.2018, conclusively proved culpability of petitioners. He maintained that law does not confer a license to a police officer to kill an innocent person, and judicial commission also recommended criminal proceedings against petitioners, after recording evidence in detail; hence, the impugned FIR is perfectly legal. The learned Counsel added that petitioners miserably failed to cite any law under which a police officer may claim immunity from criminal proceedings when he commits a day-light murder of an innocent person. It is agitated that partisan of police was proven under record and the impugned FIR was admittedly lodged upon huge public protest, after obtaining commission report therefore, no unexplained delay is present in lodging FIR and even otherwise, FIR cannot be quashed on such a flimsy ground. He finally submitted that writ petition may be dismissed with heavy costs and in support of his arguments, he relied upon cases titled Khadim Hussain v. Abdul Basit and 6 others 2002 SCR 447 and The Eastern Construction Company v. AJ&K Government and others 2013 SCR 548.
8. Ch. Shoukat Aziz, the learned Counsel for Yasin Baig, petitioner, in Writ Petition No. 1074/2018, filed written arguments, wherein, it is submitted that regarding incident dated 16.03.2018, an inquiry commission was appointed vide Government notification dated 22.03.2018, through which ToRs for inquiry were mentioned therein; however, the commission beyond its ToRs plus facts of the matter, submitted report on assumption and presumption. He pressed into service that all the facts mentioned in report, as well as, the statements of the witnesses reproduced in report nowhere match with the finding of the commission; hence, report contradicts the facts. It is further submitted that regarding the incident two FIRs were registered; FIR No. 40/2018, was registered on the complaint of concerned SHO, and other FIR was registered on the complaint of brother of Muhammad Naeem Butt, deceased, whereas whole action was taken on the order of District Magistrate, to protect the lives of protesters, however, the report of commission is otherwise; because commission admitted in its report that no cogent evidence was available on the basis of which it could be said that petitioner was involved in the incident or he made any firing or instigated to fire; hence, Commission report is not reliable; therefore, the same may be quashed. He further submitted that the commission without any reliable evidence concluded about the alleged incident and involved petitioner along with his rescue 1.5 squad, whereas in its report it is admitted that ammunition distributed to police personnel, as 25/25 bullets and SMG rifles, were returned without use. It is further submitted that no oral evidence was available on record which could reveal that petitioner ordered his subordinates of firing or he himself opened fire on protesters, but the commission illegally levelled allegation against petitioner. The learned Counsel agitated that the commission travelled beyond ToRs and in its report nominated petitioner as a chief accused along with four other police personnel and declared them as accused of murder, as well as, attempt to murder and proposed criminal, as well as, disciplinary action against them, whereas the commission had no such type of prerogative. He further submitted that the commission recorded statements of the persons who were part in the case and did not record statements of impartial witnesses and also not provided sufficient chance to defense. It is contended that law immunes petitioner and the other authorities who were functioning in affairs of the State, for protection of the lives of citizens and the other protestors, while discharging their duties according to law; hence, their act which was done in good faith, could not be declared as offence; however, due to the commission report, petitioner and two other subordinates were declared culprits of murder; hence, registration of FIR No. 68/2018, against petitioner is also not justified.
9. The learned Counsel finally prayed for acceptance of writ petition and quashment of commission report dated 30.04.2018.
10. Conversely, Raja Ayyaz Ahmad Khan, the learned Assistant Advocate General, appearing on behalf of respondents, submitted in written arguments similar grounds as filed in Writ Petition No. 945/2018; hence, the same are not repeated her for the sake of brevity and convenience.
11. We have given our dispassionate thought to the written arguments filed by the learned Advocates for parties and have perused the contents of writ petitions, as well as, appended documents made available with utmost care.
12. A contemplate perusal of record reveals that on 16.03.2018, Jammu Kashmir Liberation Front (JKLF) called a long march with the name of peace march, which was scheduled to be observed from Tattapani to Madarpur and it was assured by leadership of JKLF that participants of long march would not move ahead from Dhar Bazaar; however, later on, they commenced travelling towards Sehr-Kakuta Bridge and reached there in front of Line of Control.
13. Thereafter, they further tried to go ahead towards LOC, hence, petitioners, being District Administration, took measures to prevent protesters in order to save their lives; meanwhile, altercation took place between police and protestors and due to firing and pelting stones, some civilians and police personnel sustained injuries. Amongst them, one injured, namely, Muhammad Naeem Butt, received fire-arm injury, who was referred to PIMS Hospital Islamabad, and case bearing FIR No. 40/2018, in the offences under Sections 353, 324, 186, 337, 147, 148, 149, 436 and 427, A.P.C, was lodged by Hassan Wazir Afridi, SHO, against more than 150 civilians, at Police Station Hajira, on 16.03.2018. Later on, Muhammad Naeem Butt, injured, after 05 days of occurrence died; hence, the people of vicinity made protest at Rawalakot City and demanded to constitute a judicial commission for inquiry into the matter. Thereupon, a Judicial Commission consisting of Mr. Justice Muhammad Sheraz Kiani, a Judge of this Court, was constituted by Government while exercising powers under Section 03 of the Commissions of Inquiry Act, 1956, vide notification dated 22.03.2018, wherein, the following 04 Terms of Reference (ToRs), were fixed for innuiry into the matter: {{URDU TEXT}} The commission, after conducting inquiry , submitted report to the competent authority , for further proceedings, on 30.04.2018. Thereafter , Muhammad Nisar, Respondent No. 6, who is brother of Muhammad Naeem Butt, deceased, submitted a written application at Police Station Hajira, on 05.05.2018, praying therein that in light of judicial inquiry , an FIR may be lodged against petitioners and other involved police personnel, upon which, the impugned FIR No. 68/2018, dated 05.05.201$, in offence under Section 302, A.P.C., was registered against petitioners and other police personnel. Later on, Government also recommended criminal, as well as, disciplinary proceedings against nominated officers and police personnel in commission report, vide notification dated 23.05.2018. Now, it is to be determined in light of record made available that whether commission report dated 30.04.2018, as well as, Government notification dated 23.05.2018, along with the impugned FIR No. 68/2018, dated 05.05.2018, are liable to be quashed?
13. We would firstly like to dilate upon the report of commission dated 30.04.2018. The inquiry commission prepared a detailed inquiry report consisting of 42 pages, as well as, other oral and documentary evidence, which consists of Pages 43 to 170. It appears that .report of commission was prepared within the fixed ToRs.
14. The conclusion, as per the said report of commission, is reproduced as under: {{URDU TEXT}}
14. It is important to observe here that Government is empowered under Section 3 of the Commissions of Inquiry Act, 1956, to appoint Commission. For facilitation the aforesaid section is reproduced as under: "3. Appointment of Commission: (1) The Federal Government may, if it is of opinion that it is necessary so to do, by notification in the official Gazette, appoint a Commission of inquiry for the purpose of making an inquiry into any definite matter of public importance and performing such functions and within such time as may be specified in the notification, and the Commission so appointed shall make the inquiry and perform the functions accordingly .
(2) The Commission may consist of one or more members appointed by the Federal Government, and where the Commission consists of more than one member , one of them may be appointed as the President thereof."
15. The petitioner , Yasin Baig, through Writ Petition No. 1074/2018, challenged Government notification dated 23.05.2018, and report of commission of inquiry dated 30.04.2018. A perusal of the aforesaid report clearl y indicates role of petitioner , as well as, others during incident. The matter , therefore, need detail investigation; hence, the aforesaid commission report and notification cannot be quashed as such. Even otherwise, a protection has been provided under Section 09 of the Commissions of Inquiry Act, 1956, in respect of the publication of any report by commission or orders made by the authority , which shall not be challenged through suits or other legal proceedings. For better appreciation the aforesaid Section 09 is reproduced as under:- "9. Protection of action taken in good faith: No suit or other legal proceedings shall lie against the Federal Government, the Commission or any member thereof, or any person acting under the direction either of the Federal Government or of the Commission in respect of anything which is in good faith done or intended to be done in pursuance of this Act or of any rules or orders made thereunder or in respect of the publication, by or under the authority of the Federal Government or the Commission, of any report, paper or proceedings."
16. After deep deliberation, it is observed that in the impugned report of Commission there is no any valid justification to exercise constitutional jurisdiction. Thus, Writ Petition No. 1074/2018, filed for setting aside the report of Commission dated 30.04.2010, and Government notification dated 23.05.2018, merits dismissal accordingly.
15. Now, we advert to Writ Petition No 945/2018, which has been filed for quashment of the impugned FIR No. 68/2018, dated 05.05.2018. It is important to observe here that the Commission made its report on 30.04.2018, and in pursuance of the said report, the aforesaid FIR was lodged in offence under Section 302, A.P.C. Thus, in order to consider the question of quashing a criminal proceeding at the preliminary stage when the 'evidence is yet to come, the Court has to take the allegations against the accused at their face value and accept the same in their entirety and then see if they do not constitute any offence for which a prosecution be warranted, the Court in its limited jurisdiction will not embark upon an enquiry to ascertain the innocence or otherwise of the accused and if the allegations disclose an offence, the case cannot be quashed merely because the accused denies the allegations and asserts that he has a good defense, when his defense is yet to come. Thus, ordinarily the guilt or innocence of an accused depends on the totality of the facts and circumstances revealed during the trial. Thus, an FIR cannot be quashed when facts enlisted in it need detailed investigation. An identical proposition came under consideration before the Hon'ble Supreme Court in case titled Shan Muhammad v. Muhammad Younis and 4 others (2014 SCR 183). The ratio decidendi of the precedent case 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".
17. It is significant to observe here that this Court in exercise of writ jurisdiction is not competent to assume role of investigating agency or the trial to give verdict as to whether an accused-person has committed an offence or not.
18. The aforesaid view finds support from a case reported as Khadim Hussain v. Abdul Basit and 6 others 2001 SCR 447, wherein, it was held by the Apex Court as under: "Irrespective of the view taken by the High Court in the aforesaid case, we are, of the view that the High Court has no jurisdiction to quash criminal proceedin gs at the stage of investigation or thereafter as has been held in number of cases, referred to above, by the Supr eme Court of Pakistan. It may be further pointed out here that the High Court in exercise of writ jurisdiction is not competent to assume the role of investig ating agency or the trial Court to give verdict as to whether an accused person has committed an offence or not. It is for the ordinary Court to decide the matter under the relevant law ."
19. We are, therefore, not convinced to quash the impugned FIR No. 68/2010, dated 05.05.2018; hence, Writ Petition No. 945/2018, is also liable to be dismissed.
20. The crux of above discussion is that, finding no substance in both the writ petitions, the same are hereby dismissed. A copy of the instant judgment shall be annexed with other relevant file. The cost shall follow the eventuality . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.