RAJA SAEED AKRAM KHAN, C.J. The captioned appeal has been filed against the judgment of the Shariat Appellate Bench of the High Court (High Court) dated 21.04.2020, whereby the appeal filed by respondents, herein, has been accepted.
2. According to the contents of FIR No.91/2019 registered at Police Station Ali Baig, on 13.09.2019, in the offences under sections 322 and 109, APC[1]; the son of complainant-appellant (Muhammad Rafique) was not feeling well on 13.09.2019. He was taken to the Hospital. When the complainant reached at Hospital, he came to know that respondent No.3 has filed an application at Police Station Ali Baig against his son that about 7/8 months ago his buffalos died from the poison given by complainant's son. In this regard, a Panchayat was to be held that day. It was alleged that due to fear and threat of accused-respondents, the complainant's son took the poisonous pills, hence, legal proceedings be initiated. Later on, the son of complainant died. The case was being investigated by the Police, when on 29.11.2019 the accused-respondents filed an application under section 561-A, Cr.P.C. before the High Court for quashment of the aforesaid FIR. The learned High Court, through the impugned judgment, while accepting the application quashed the FIR, hence, this appeal.
3. Raja Mazhar Iqbal, Advocate, the learned counsel for the complainant-appellant argued that the innocent son of the appellant has taken poisonous pills due to threat of accused-respondents.
Initially, the case was registered under section 325, A.P.C., however, later on the same was altered to sections 322 and 109, A.P.C. He added that the, accused-respondents surrendered themselves before the District Court of Criminal Jurisdiction, Bhimber for bail before arrest, which was dismissed for non-prosecution, however, in appeal the matter was remanded on 19.02.2020 by the High. Court, 'with the direction to decide the application on merits the application is still pending, whereas, the learned High Court through the impugned judgment has quashed the FIR. He added that fear of the accused-respondents was the cause due to which the complainant's son took pills, hence, they have committed cognizable offence. The matter falls within the domain of investigating agency. It is the investigating agency, who has to decide the cause of suicide. If the respondents were innocent the investigating agency is fully empowered to discharge them but the learned High Court was not justified to quash the FIR in exercise of powers vested in it under section 561-A, Cr.P.C. In this state of affairs, while accepting this appeal the impugned judgment of the High Court be set-aside.
4. Conversely, Mr. Abdul Wahid Aamir, Advocate, the learned counsel for the respondents stated that the arguments advanced by the learned counsel for the appellant are misconceived. The accused-respondents were implicated in the case just for harassment as there was dispute over the piece of land. He further submitted that the learned High Court in order to save the people from the agony of abuse of the process of law and Courts, has powers to quash the FIR, and in the instant case the learned High Court has rightly exercised its powers. He further added that contents of FIR itself proves that the deceased committed suicide. Due to the act of deceased the accused- respondents cannot be robed in a case, specially, when no illegal act is attributed to them. In this scenario, the learned High Court rightly quashed the FIR. The impugned judgment of the High Court is well reasoned, hence, calls for no interference by this Court.
5. We have heard the arguments of learned counsel for the parties and gone through the record made available. Admittedly, the case was under investigation when the accused-respondents filed an application under section 561-A, Cr.P.C. before the High Court for quashment of FIR, whereupon, the FIR was quashed. By now it is almost settled that the High Court or Shariat Court is not empowered to assume the role of investigating agency for the purpose of appreciation of the material which is yet to be finalized by the investigating agency. It may be observed here that if after completion of the investigation the investigating agency reaches the conclusion that a cognizable offence has been made out, the proper course is to investigate the matter while providing fair opportunity to both the parties to place their point of view before the investigating agency. If the investigating agency reaches the conclusion that no case has been made out, then law empowers it to recommend for cancellation of the case. If the challan is presented in the Court the new situation emerges and the accused can file application under sections 249-A and 265-K, Cr.P.C. but according to the settled law the High Court/Shariat Court has no jurisdiction to quash the FIR at investigating stage. Here we would like to refer the ease reported as Shan Muhammad v.
Muhammad Younas and others [2014 SCR 183], wherein it has been held that:-- "9. Section 561-A, Cr.P.C. confers powers upon the High Court to make such orders as may be necessary to give effect to any order under the Code of Criminal Procedure or to prevent abuse of process of any Court or otherwise to secure the ends of justice. It is necessary to reproduce section 561-A, Cr.P.C. which is as under:- 'Saving of inherent power of High Court: 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.'
10. A bare reading. of section 561-A, Cr.P.C. reveals that the High Court/Shariat Court can pass three types of orders:-- a) To make orders for implementation of orders passed by any Court under the Code of Criminal Procedure. b) To prevent the abuse of process of Court, and c) To otherwise make any order to secure the ends of justice.
The Code of Criminal Procedure empowers the police to perform the duties in a particular sphere.
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. The superior Courts have settled the law long time ago that the High Court/Shariat Court has no jurisdiction to quash the FIR at investigation stage under section 561-A, Cr.P.C. In a case reported as Kh. Fazal Karim v. The State and another [PLD 1976 SC 461] it has been held as under:- 'It is well-settled that the inherent jurisdiction of the High 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 redress of grievances for which no other procedure is available and that the provision should not be used to obstruct or divert the ordinary. course of criminal procedure.'
Similarly in a case reported as Muhammad Mansha v. Station House Officer, Police Station City, Chiniot, District Jhang and others [PLD 2006 SC 5981 it was observed as under:- It is a principle too well-established by now that a resort to the provisions of section 561-A, Cr.P.C. or to the provisions of Article 199 of the Constitution seeking quashment of a criminal case was an extraordinary remedy which could be invoked only in extraordinary circumstances and the said provisions could never be exploited as a substitute for the prescribed trial or to decide the question of guilt or innocence or an accused person on the basis of material which was not admissible in terms of Qanun-e-Shahadat Order of 1984.'
In another case reported as Chaudhary Munir v. Mst. Surriya and others [PLD 2007 SC 189] it was observed as under:-- having gone through almost the entire case-law on the subject that the powers as conferred Upon the High Court under section 561A, Cr.P.C. are required to be exercised in exceptional cases where it is satisfied that continuation of proceedings complained of would amount to gross abuse of process of Court or that it is absolutely necessary to exercise inherent powers to secure the ends of justice. The powers as conferred upon High Court in section' 561-A, Cr.P.C. being extraordinary in nature must be exercised sparingly with utmost care and caution and it should not be exercised in casual and cursory manner because inherent jurisdiction as conferred upon the High Court pursuant to the provision as enumerated in 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 redress of grievances for which no other procedure is available and that the provisions should not be used to obstruct or divert the ordinary course of criminal procedure.'
It is clear that the powers under section 561-A, Cr.P.C. being extraordinary in nature must be exercised sparingly with utmost care and caution and it should not be exercised in casual and cursory manner. As stated hereinabove, according to the settled principle of law, the learned High Court/Shariat Court cannot quash the FIR at investigating stage, hence, there is no need to discuss any other point as all the other questions have to be decided by the investigating agency.
For the above stated reasons, while accepting this appeal and recalling the impugned judgment, the investigating agency is directed to expeditiously complete the investigation and proceed further in accordance with law.
[1]Initially the case was registered under section 325, A.P.C., however, later on the same was altered to 322 and 109, A.P.C.