1. RAZA ALI KHAN, J. The captioned writ petitions filed under section 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, raise common questions of facts and law hence, were heard together and are decided as such.
2. The petitioners in both the captioned writ petitions have sought quashment of FIR No.397/2017 dated 18.11.2017 registered at Police Station City Mirpur Tehsil and District Mirpur in the offences under sections 419/420, 34, A.P.C. for having been registered illegally , without lawful authority , without jurisdiction and based on mala fide intention.
3. Precise facts which culminated into filing of the above titled writ petitions are that the petitioners are 1st State Subject of Azad Jammu and Kashmir and resident of Sector C/4 Mirpur . It was submitted that SHO Police Station City Mirpur on a frivolous application of respondent No.4 registered FIR No.397/2017 at Police Station City Mirpur against the petitioners in the offences under sections 419/420 and 34, A.P.C. on 18.11.2017, which was filed after a period of more than 3 years regarding breach of contract. It was further submitted that the FIR has been registered in order to harass the petitioners. It was contended that the petitioners have not committed any offence. It was further contended that continuation of the proceedings is an abuse of process of law. Respondents have filed objections wherein it is submitted that the police after investigation has submitted challan before the trial Court and the writ petitions have been filed with mala fide intention in order to stop the trial of the case.
4. The learned Advocate appearing for the petitioners argued that the FIR has been registered regarding the breach of contract and no criminal offence appears to have been committed from the contents of the FIR. The learned Advocate submitted that matter relates to civil obligation, therefore, the registration of the case is misuse of authority and continuation of the same is an abuse of process of law. The learned Advocate in support of his submissions placed on the following case law:
1. 2017 PCr .LJ 133
3. 2013 YLR 2513 The learned Advocate appearing for the respondents argued that the challan has been submitted before the trial Court, therefore, the petitioners may moved the trial Court under section 249-A, Cr.P.C. The learned Advocate contended that FIR has been registere d on the direction of Justice of Peace issued on 08.11.2017 and the petitioners have not challenged the order of Justice of Peace dated 08.11.2017, hence, the writ petitions are liable to be dismissed.
5. In rebuttal, the learned Advocate appearing for the petitioners argued that on a revision petition filed by petitioners herein, the proceedings on challan have been kept in abeyance by the learned Sessions Judge, therefore, the argument that the challan has been submitted before the trial Court is not available to the respondents.
6. I have heard the learned counsel for the parties and gone through the record of the case.
7. It is now well settled that this Court has limited scope and jurisdiction in such like matters while exercising its jurisdiction under section 44 of Interim Constitution Act, therefore, this Court always refrains itself from interference with police investigation of a criminal case except in exceptional circumstances, (i) where the allegation made in the first information report or the complaint, do not prima facie constitute any offence or make out a case against the accused; (ii) where the allegation in first information report does not disclose a cognizable offence justifying an investigation by police officer under section 156(ii) of Cr.P.C. except under an order of a Magistrate within the purview of section 155(2) of Cr.P.C. or (iii) where uncontroverted allegations made in FIR or complaint and the evidence collected in support of the same, do not disclose the commission of any offence and make out a case against the accused or (iv) where allegation in the FIR do not constitute a cognizable offence but constitute only non-cognizable offence, no investigation is permitted by a police officer with an order of a Magistrate contemplated under section 155(2) of Cr.P.C. or (v) where the allegations made in FIR or compla int are so absurd and itinerantly improbable, on the basis of which no prudent person can ever reach just conclusion that there is sufficient ground for proceeding against accused (vi) where there is express legal bar engrafted in any of the provisions of code or concerned Act, or where there is specific provision in code or concerned Act, providing, efficacious redressal for grievance of aggrieved party , (vii) where criminal proceedings manifestly attended with mala fide and or where the proceeding is maliciously instituted with an ulterior motive.
8. Obviously , criminal cases are decided on the basis of material so collected by the prosecution during the course of investigation and the evidence recorded in the trial Court and that too; after appraisal of evidence by it in accordance with the law applicable there to. This Court cannot assume the role of an investigating agency or of a trial Court to dilate upon the factual controversies involved in the exercise of its constitutional jurisdiction. This view has been consistently enunciated by the superior Courts that High Court ought to have refrained from exercising constitutional jurisdiction during investiga tion of criminal case. In a case titled Col. Shah Sadiq v. Muhammad Ashiq and others reported as (2006 SCMR 276), wherein, the Hon'ble Supreme Court of Pakistan in para 7 of the judgment has observed that: "7. It is also a settled principle of law that 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 constitution al jurisdiction of High Court. By accepting the constitutional petition the High Court erred in law to short circuit the normal procedure of law as provided by under Cr.P.C. and police rules while exercising equitable jurisdiction which is not in consonance with the law laid down by this Court in Habib Ahmad v. M.K.G. Scott Christian PLD 1992 SC 353. The learned High Court had quashed the FIR in such a manner as if the respondent had filed an appeal before the High Court against order passed by trial Court. The learned High Court had no jurisdiction to quash the impugned FIR by appreciation of the documents produced by the parties without providing chance to cross-examine or confronting the documents in question. Respondents had alternative remedy to raise objection at the time of framing the charge against them by the trial Court or at the time of final disposal of the trial after recording the evidence. Even otherwise, respondents have more than one alternative remedies before the trial Court under the Cr.P.C. i.e. sections 265-K, 249-A or to approach the concerned Magistrate for cancellation of the case under provisions of Cr.P.C."
9. Similar view was taken by this Court in case titled Aziz Akbar and 3 others v. State through Advocate General of Azad Kashmir reported as 2009 YLR 1004 and at page 1006 of the report observed as under .
10. "It is also held in number of cases by superior Courts that this Court cannot assu me the role of investigator . The petitioners have alternate remedy under sections 265-K and 561-A, Cr.P.C. befor e trial Court and when alternate remedy is available in any case then remedy under section 561-A of Cr.P.C. is not attracted. The accused petitioners should have put their defence version regarding their innocence before trial Court instead of this Court.
11. There is no cogent material is available from the accused petitioners' side for the satisfaction of Court that aforesaid FIRs have been registered with mala fide intention to harass the accused and the continuance of the cases would be an abuse of process of law. It has been also held by superior Courts that remedy under section 561-A of Cr .P.C. is not to be used to divert the ordinary course of criminal procedure code."
12. A division bench of Sindh High Court in case titled Nangar Kalhoro v. Province of Sindh and 6 others reported as (2012 YLR 284 ) at page 286 of the report observed in the following manners:- "After hearing the arguments of learned counsel for the petitioner , we have no hesitation in our mind to hold that a resort to provisions of Article 199 of the Constitution seeking quashment of the case is an extraordinary remedy which can be invoked only in extreme circumstances and said provisions can never be exploited as a substitute for the prescribed trial or to decide the question of guilt or innocence of an accused person. 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."
13. A perusal of the record reveals that Irfan Ehsan private respondent filed an application before SHO Police Station City Mirpur , alleging therein that Zarar Ismail contacted him for sale of House No.221/A situated in Sector C/4 Mirpur and the bargains was struck between the parties on 25.04.2014 in lieu of Rs.1,37,00,000/- out of which Rs.20,00,000/- was deposited in the account of Zarar Ismail on 06.06.2014, Rs.10,00,000/- was deposited on 20.06.2014, Rs.5,00,000/- was deposited on 06.07.2014, Rs.15,00,000/- was paid to Umair Zarar son of Zarar Ismail in the month of November 2014, Rs.15,00,000/- was deposited on 17.02 .2015 and Rs.25,00,000/- was deposited on 27.04.2015 and Rs.27,00,000/- was deposited in the account of Zarar Ismail on 05.05.2015, hence, he has paid Rs. 1,12,00,000/- but the accused has refused to transfer the house and has also refused to return the money . The SHO did not take any action on the application, whereupon, respondent No.4 herein, filed application under section 22-A, Cr.P.C. before Sessions Judge/Justice of Peace Mirpur on 25.10.2017. The learned Sessions Judge disposed of the application with the direction to the SHO Police Station City Mirpur to obtain proof in support of the application from the applicant and in case a cognizable offence appears to have been committed, register the FIR, thereafter , the SHO registered FIR No.397/17 in the offences under sections 419/420 and 34, A.P.C. The petitioners have sought quashment of the FIR on the ground that the matter pertains to civil liability and a civil suit for specific performance of the contract is subjudice before the Civil Court, thus, the registration of the FIR is illegal and misuse of power . There is plethora of judgments of superior Courts on the subject that criminal and civil proceedings can be proceeded simultaneously . In this regard reliance can be placed on case titled Haji Sardar Khalid Saleem v. Muhammad Ashraf and others reported as 2006 SCMR 1192 wherein the Hon'ble Supreme Court of Pakistan at page 1 195 of the report observed as under:- "We have given our anxious consideratio n to the contention of the learned counsel of the parties and perused the record. The contention of learned counsel for the respondent that dispute between the parties is of civil nature has no force in view of law laid down by this Court in Ahmad Saeed v . The State 1996 SCMR 186 .
14. It is also settled law that criminal procee dings are not barred in presence of civil proceedings and that civil and criminal proceedings can be proceeded simultaneously . Reference can be made to the following cases:- Talab Hussain v. Anar Gul Khan and 4 others 1993 SCMR 2177 and Deputy Inspector-General of Police v.
15. Anees-ur-Rehman Khan PLD 1985 Supreme Court 134 ".
16. Same like observations have been recorded by the Hon'ble Supreme Court of Azad Jammu and Kashmir in case titled Raja Niaz Hussain v. Muhammad Khurshid and 3 others (2005 MLD 1301 ). The relevant observations recorded in para 6 are reproduced as under:- "It may be mentioned that an offence committed by any accused person has to be tried and decided in accordance with law unless the nature of the case is such which may depend upon the decision of the civil suit, irrespective of the fact whether a civil suit challenging the same subject matter has been filed."
17. Similarly in case titled Rehan Nasir v. Station House Officer, Police Station, Rail Bazar , District Faisalabad reported as 2008 YLR 2505 the learned Judge of Lahore High Court Lahore opined as under: "There is no substance in the argument of the learned counsel that criminal proceedings have to be held in abeyance in all circumstances during pendency of a civil suit, reliance can profitably be made to Haji Sardar Khalid Saleem v. Muhammad Ashraf and others (2006 SCMR 1192) wherein the honourable apex Court has held that criminal proceedings were not barred in presence of civil proceedings and that civil and criminal proceedings could be carried out simultaneously ."
18. Hence, in view of above dictum of the superior Courts, I am satisfied to hold that criminal as well as civil proceedings can be proceeded side by side and mere filing of a suit is not a ground for quashment of an FIR registered for commission of a cognizable of fence.
19. In view of the above discussed pronouncements of Hon'ble Supreme Court of Azad Jammu and Kashmir and Hon'ble Supreme Court of Pakistan, it is held that factual controversies involved in instant case cannot be resolved in constitutional jurisdiction under section 44 of the Interim Constitution Act, 1974 and similarly deviation from normal procedure of law as provided by the Code of Criminal Procedure is not justified, when remedies provided under law are available to the petitioners and constitutional jurisdiction cannot be exercised. Admittedly report under section 173, Cr.P.C. (challan) has been submitted before the trial Court, therefore, petitioners can agitate before the trial Court, all the grounds taken by them before this Court. Petitioners should avail the remedies provided under law for redressal of their grievance instead of invoking extra ordinary jurisdiction of this Court.
20. The upshot of the above discussion is that keeping in view the peculiar facts and circumstances of this case and case law discussed hereinabove both the writ petitions being bereft of merits are hereby dismissed.