Through the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has made the following prayer:- "It is thus requested that by accepting this petition, the FIR No.14/2020 dated 05.11.2020 u/s 420, 468, 471, 109 PPC & 5(2) 47 of PCA along with subsequent proceedings may be declared withou t foundation malafide and of no legal effect.
Any other remedy , which this Hon'ble Court deems fit may also be awarded".
2. Farzana Maqsood respondent No.3 lodged an FIR No.14/2020 with P.S. ACE, Bahawalpur , alleging therein that the petitioner and others through a conspiracy had excluded her name from the inheritance mutation No.37 dated 22.09.1994 of her grand-father Sher Muhammad, although, she was entitled to get share from the legacy of said Sher Muhammad.
3. Learned counsel for the petitioner submits that the above said FIR registered against the present petitioner and four others is liable to be quashed, as the due share of respondent/complainant has been transferred in her name and the litigation between the panics before the learned Civil Court was dropped, as the parties reached to an amicable settlement between them.
4. Conversely , the learned law officer, assisted by learned counsel for the respondent/complainant controverted the arguments advanced by the learned counsel for the petitioner by stating therein that in fact the property of Sher Muhammad (predecessor-in-interest of the respondent/complainant) was situated in two villages (Mauzaz, Chak No.89 & 90). The respondent/complainant got her share from the property situated in Chak No.90, whereas the accused persons including the present petitioner had refused to transfer her due share from Chak No.89. The learned law officer apprised that on conclusion of investigation, report u/s 173 Cr.P.C. had already been submitted before the learned Trial Court, so, the petitioner has got the alternate and efficacious remedy to defend himself or file an application u/s 249-A Cr.P.C. Learned law officer further contends that there are five accused persons nominated in the FIR in the instant criminal case, whereas the petition had been filed by one accused persons i.e. the present petitioner Faqir Muhammad. So, according to law the FIR Cannot be partially quashed, hence, the instant petition is liable to be dismissed.
5. 1 have straightway observed that since the investigation in the above said case has already been completed and while declaring the present petitioner and others as guilty , report u/s 173 Cr.P.C. had been submitted before the learned Trial Court, in which the learned Trial Court has taken the cognizance, therefore, alternate remedy as provided u/s 249-A Cr.P.C. would he more efficacious, appropriate and beneficial. Keeping in view - the facts and circumstances of the instant case, the question of guilt or innocence of the accused persons nominated therein could not be decided by the High Court in exercise of Constitutional Jurisdiction, as such function fell within the jurisdictional domain of court concerned, by whom the entire evidence was to be scrutinized, which could not be done in exercise of constitutional jurisdiction. In this regard, I am fortified with the principle laid down by the august Supreme Court in cases of "MUHAMMAD ABBASI v. SHO BHARA KAHU and 7 others " (PLD 2010 Supreme Court 969), "Col. SHAH SADIQ v. MUHAMMAD ASHIQ and others (2006 SCMR 276) & "MUHAMMAD SALEEM BHA TTI v. Syed SAFDAR ALI RIZVI and 2 others" (2006 SCMR 1957 ). As far as second objection raised by the learned law officer regarding the competency of the instant writ petition seeking quashing of FIR on behalf of one of the accused persons is concerned, the apex Court of Pakistan in case of "DIRECT OR-GENERAL, ANTI-CORRUPTION ESTABLISHMENT , LAHORE and others v. MUHAMMAD AKRAM KHAN and others (PLD 2013 Supreme Court 401 ) observed as under:- "After hearing the learned Additional Advocate-General, Punjab appearing for the appellants and the learned counsel for respondent No.1 and having gone through the record of the case with their assistance we have found that through the impugned order the learned Judge-in-chamber of the Lahore High Court, Lahore had partially quashed the relevant FIR to the extent of respondent No. 1 whereas partial quas hing of an F.I.R. to the extent of some of the accused persons mentioned therein is a legal impossibility . Apart from that the impugned order had been passed by the learned Judge-in-Ch amber of the Lahore High Court, Lahore at a time when a Challan in the relevant criminal case had already been submitted before the learned trial court and the learned Trial court had already taken cognizance of the case. The law is quite settled by now that after taking cognizance of a case by a trial court the F.I.R. registered in that case cannot be quashed and the fate of the case and of the accused persons challaned therein is to be determined by the trial court itself It goes without saying that if after taking of cognizance of a case by the trial court an accused person deems himself to be innocent and falsely implicated and he wishes to avoid the rigours of a trial then the law has provided him a remedy under sections 249-A/265-K, Cr.P.C. to seek his premature acquittal if the charge against him is groundless or there is no probability of his conviction."
6. As far as merits of the case is concerned, all the accused persons nominated in the crime have been declared as fully involved in it by the investigating agency/ACE, although, there is no cavil to the proposition that the opinion of the police cannot be considered as sacrosanct and ultimately it is for the court concerned to decide the question of guilt or innocence of the accused in accordance with law. The Constitutional Jurisdiction where alternate remedy is provided, which is convenient and beneficial, cannot be invoked.
7. The upshot of above discussion is that the instant writ petition is not competent and liable to be dismissed, which is dismissed accordingly .