RAZA ALI KHAN, J. The captioned appeal by leave of the Court arises out of the orderd dated 03.102.2019. passed by the High Court of Azad Jammu & Kashmir, in Civil misc. application No. 75 of 2019, whereby, the application filed by respondent No 1, herein, for quashment of FIR has been accepted.
2. The brief facts forming the background of the captioned appeal are that the appellant and respondent No. 1, herein, entered into a contract of sale in respect of the land bearing khasra No. 14, Mozia Sahib Chak, Mirpur, measuring 5 kanal, 17 marla, on 07.12.2018 and an amount of Rs.
25,00,000/- was also paid by the appellant to respondent No. 1, as the earnest money. According to the appellant, after the aforesaid contract, respondent No. 1 has transferred the land to his wife Mst.
Sarwar, through gift-deed, on 22.10.2019, while changing the Yard", hence, he has committed fraud with the appellant. After having the knowledge about the said fraud, the appellant filed an application before the concerned Police (SSP) for registration of the FIR. The concerned Police registered the FIR and started the investigation, where upon, respondent No. 1, herein, filed an application under section 561-A, Cr.P.0 before the learned High Court for quashment of the FIR. The learned High Court through the impugned order while accepting the application has quashed the FIR., hence, this appeal by leave to appeal.
3. Mr. Fiaz Haider Nawabi, Advocate, the learned counsel for the appellant, argued that the impugned order passed by the learned High Court is against law and the facts of the case which is not sustainable in the eye of law. He contended that the learned High Court while quashing the FIR has misconstrued law and the facts of the case. The learned counsel further argued that the FIR was: registered against respondent No. 1, on the allegation of committing the fraud and the proper course was to let the matter get investigated by the investigating agency. according to law. The learned High Court has no power to assume the role of the investigating agency. In continuation of the arguments, he submitted that the report of the investigating officer has not come on the record as yet, therefore, at this stage the quashment of the FIR was not warranted- under law. The learned High Court has also fell in error of law while not appreciating the contents of the FIR and illegally held that the controversy between the parties seems to be is of civil nature which does not constitute a cognizable offence.
4. On the other hand, Mr. Muhammad Nadeem Khan, while appearing on behalf of respondent No.1, forcefully opposed the arguments addressed on behalf of the appellant while submitting that the impugned order of the High Court is perfectly legal. He submitted that the learned High Court has rightly held that no criminal liability is made out by respondent No. 1, herein, and the proper course for the appellant was to approach the Civil Court for redressal of his grievance. He further argued that an agreement-to-sell was executed between the parties, which denied by respondent No. 1, herein, and in case of violation of the said agreement, the appellant had to file the suit, but instead of approaching the proper forum, the appellant filed a false FIR, against respondent No. 1, herein, which has rightly been quashed by the learned High Court.
5. Raja Saadat Ali Kiani, the learned Additional Advocate-General, while appearing on behalf of the State, supported the stance taken by the learned counsel for the appellant. He submitted that as the matter is under investigation and no findings of the Investigating Officer have come on record, therefore at this stage, quashment of FIR amounts to pre-empt the powers of the Investigating agency.
6. We have heard the learned counsel for the parties and perused the record inutely. The allegation levelled against the respondent is that the appellant and the respondent entered into a contract of sale in respect of the land bearing khasra No. 14 Mozia Sahib Chak, Mirpur measuring 5 kanal, 17 marla, on 07.12.2018 and an amount of Rs. 25,00,000/- was a Is paid by the appellant to the respondent as the earnest money while the remaining amount-was) to be paid at the time of making transfer of the land. Thereafter, respondent No. 1 has transferred the said land to his wife through a gift-deed on 22.10.2019. An application has been moved before the 'concerned Police
(SSP) for registration of the FIR. The concerned Police registered the FIR and started the investigation. The respondent, herein, filed an application under section 561-A, Cr.P.C, before the learned High Court for quashment of the FIR. The learned High Court vide impugned order dated 03.12.2019, while accepting the application has quashed the FIR.
7. During the course of arguments, the learned counsel for the respondent was confronted with the proposition that the matter was under investigation then how the learned High Court could ascertain that the FIR has been lodged falsely, he submitted that there was an agreement between the parties and if any violation of the agreement was Committed, the affected party could approach the Civil Court by filing a suit for specific performance of agreement and the registration of the criminal case was not warranted under law. The learned counsel for the respondent was further confronted that the learned High Court cannot take the role of investigating agency by forming the option in either way regarding the involvement of the appellant in the case, the appellant has an opportunity to place his point of view before the investigating agency at first, the agency may exoneratehirn of the charge or if presents a challan against the respondent then he may move an application under section 249-A, Cr.P.C. for acquittal and raise all the points before the Court of competent jurisdiction which the respondent raised before the High Court as well as before this Court.
8. It is now settled law that while exercising the powers under section 561, Cr.P.C. or the constitutional power under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, the High Court has limited powers to interfere in the matter of investigation and quash the FIR.
Under the scheme of Criminal Procedure Code, 1898, it is the Investigating Officer, who is responsible to collect all the material connected with the commission of an offence and if he finds that the offence has been committed, he has to submit the report and if no offence is committed in the opinion of the Investigating Officer after completion of the investigation, he may submit a report under section 173, Cr.P.C. to the concerned Magistrate. The purpose of making investigation is to collect material to ascertain whether or not and offence has been committed. If the police is estopped from making investigation of the matter, which is solely statutory duty of the police, it would be tantamount to act against law. The learned High Court may interfere but in the very exceptional cases. Our this view finds support from an unreported judgment of this Court titled Shahroom Khan & another vs. Justice of Peace/Sessions Judge, Muzaffarabad & others (Civil Appeal No: 539 of 2020, decided on 29.09.2021), wherein, this Court in paragraph 8 of the judgment has held as under:-- "8. ......The High Court has inherent powers to prevent the abuse of process of Court and law, because Courts are established for supremacy of law and to secure innocent people from abuse of process of law and prosecution. Legal position is absolutely clear and aIso settled by legal precedents that the Courts would not interfere with the investigation or during the course of investigation, which would mean that from the time of lodging the F.I.R. till the submission of report under section 173, Cr. P.C. in Court, this domain is exclusively reserved for investigating agency and is not open to the High Court to interfere except in exceptional circumstances. It Is made clear that the appellants should be at liberty to ventilate their grievance before the Investigating Officer and Investigating Officer is expected to consider the grievance of the appellants by ensuring a fair and impartial investigation in the matter strictly in accordance with law. In the present case, investigation is still in complete to and it is necessary to provide time to police to conclude the investigation and gather proof of appellants' involvement, if any, in the alleged offence. The FIR in the instant case was registered under section 420, 467. 468 and 471, APC., wherein it was alleged that appellants, herein, have prepared a forged and fabricated affidavit and pretended it to be genuinely executed by the father of the respondent. It may be stated that the Police have statutory right to investigate into an offence, as the function of the Court begins when report under section 173, Cr.P.C. and charge is preferred before it and not before, except in exceptional cases, either to prevent abuse of process of law or to secure the ends of justice, though, no hard and fast rule may be determined by stretch of mere imagination, wherein such power should be exercised, however, the principles may be derived from the decision of the apex Courts. The Supreme Court of India in the case titled M/S Neeharika Infrastructure us. The State of Maharashtra dated 21.4.2021- (via http://indiankanoon-orgjdoc/199473647 1, accessed on 21.9.2021) discussed plethora of decisions and relied upon the case titled King-Emperor us. Khawaja Nazir Ahmed (AIR 1945 PC 18) which laid down categories of cases where constitutional jurisdiction and inherent power of High Court may be exercised for interference in investigation of quashing of F.I.R. The relevant part of the cited case is reproduced as under: -
(i) Police has the statutory right and duty under the relevant provisions of the Code. of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;
(ii) Courts would not the thwart any investigation into cognizable offences; It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;
(w) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the "rarest of rare cases (not to be confused with the formation in the context of death penalty).
(v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations' made in the FIR/complaint;
(vi) Criminal proceeding sought not to be scuttled at the initial stage; Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
(viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;
(ix) The functions of the judiciary and the police are complementary, not over lapping;
(x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
(xi) Extra ordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the 'Court, to act according to its whims or caprice;
(xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the 'complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance 'in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be consider ed by the learned Magistrate in accordance with the known procedure.
(xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;
(xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR' complaint;
(xv) When a prayer for Quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482, Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on me its whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency I police to investigate the allegations in the FIR;
(xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482, Cr.P.C. and or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegate ed to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/charge sheet is filed under Section. 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.
(xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482, Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.
(xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High. Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be mis understood and/or misapplied."
The High Court while exercising constitutional jurisdiction as well as the inherent powers under section 561A, Cr.P.C. cannot assume the role of investigating agency or trial Court. Criminal cases are decided on the basis of material so collected by the prosecution and then evidence recorded by the trial Court. The High Court cannot deliberate upon the factual controversies involved in these cases while exercising constitutional jurisdiction. Our this view finds support from the case reported as Khadam Husasin vs. Abdul Basit and 6 others (2001 SCR 447), wherein, at page 453 of the report, it has been held as under:- ".....It was in the aforesaid circumstances that the High Court quashed the proceedings in the said case. 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 "proceedings at the stage of investigation or thereafter as has been held in number of cases, referred to above, by the Supreme 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 investigating 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."
This Court in a recent case titled Abdul Ghafoor & others Vs Superintendent of Police and others (Civil PLANo. 133/2021 decided on 10.6.2021) while dealing with the same proposition has observed as under- "After hearing the learned Advocates representing the parties and going through the record of the case made available along with the impugned order of the learned High Court, I am of the view that as the matter is being probed and investigated by the Investigating Agency and a report under section173, Cr.P.C. has been submitted before the Court of competent jurisdiction and it is yet to be decided whether the petitioners, herein, are innocent or not and it is a question of fact which can only be determined through evidence. It may be observed that criminal cases are to be decided on 'the basis of material facts so collected, by the prosecution and evidence' recorded by the trial Court. The High Court is not vested with powers to deliberate upon and resolve the factual controversies even in the cases of ordinary nature while exercising its Constitutional jurisdiction and also cannot assume the role of an Investigating Agency. This view has been consistently enunciated by this Court that the High Court ought to refrain from exercising its writ jurisdiction at the investigation stage of a criminal case except in exceptional cases. The observation made by the learned High Court in the impugned order is quite in accordance with law and the impugned order is unexceptionable, which hardly requires any interference by this Court. The petitioners have failed to point out any legal question involved in the case which is pre-requisite for grant of leave, hence, the leave is refused."
The Supreme Court of Pakistan in the case reported as Col. Shah Sadiq us. Muhammad Ashiq and others (2006 SCMR 276) has held as under:-- "6 In case the contents of the writ petition and parawsie comments alongwith the aforesaid facts mentioned in chronological order are put in juxtaposition then it brings the case of respondents No. 1 to 3 in the area of disputed questions of fact. It is settled proposition of law that High Court has no jurisdiction to resolve the disputed question of fact in constitutional jurisdiction as the law laid down by this Court in the following judgments:-
(i) Muhammad Saeed Azhar v. Martial Law Administrator Punjab and others 1979 SCMR 484; (ii)
Umar Hayat Khan v. Inayatullah Butt and others 1994 SCMR 572; (iii) Mst. Kaniz Fatima through Legal Heirs v. Muhammad Salim 2001 SCMR 1493; (iv) Secretary to. Government of the Punjab, Forest Department, Punjab, Lahore through Division Forest Officer v. Ghulam. Nabi and 3 other PLD 2001 SC 415; (v) Wazir Ali Soomro v. Water and Power Development Authority and others 2005 SCMR 37."
While discussing the various provisions provided in Cr.P.C., it has further been held by the apex Court at page No. 280 of the same judgment as under: -- "7. It is also a settled proposition 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 constitutional 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 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 A. Habib Ahmad v. MKG. Scott Christian PLD 1992 SC 353. The learned High Court had quashed the F.I.R. 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 F.I.R. 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. section 265-K, 249-A or to approach the concerned Magistrate for cancellation of the case under provisions of Cr.-P.C. The respondents have following alternative remedies under Cr. P.C.
(a) To appear before the Investigating Officer to prove their innocence.
(b) To approach the competent higher authorities of the Investigating. Officer having powers vide section 551 of Cr.P.C.
(c) After completion of the investigation, the Investigating Officer has to submit case to the concerned Magistrate and the Magistrate concerned has power to discharge them under section 63 of the Cr.P.C. in case of their innocence.
(d) In case he finds the respondents innocent, he would refuse to take cognizance of the matter,
(e) Rule 24.7 of the Police Rules of 1934 makes a provision for cancellation of cases during the course of investigation under the orders of the concerned Magistrate.
(f) There are then remedies which are available to accused persons who claim to be innocent and who can seek relief without going through the entire length of investigations.
8. The learned High Court erred in law in accepting constitutional petition by quashing the F.I.R. at the initial stage which was not in consonance with the law laid down by this Court in the following judgments:--
(i) Ghulam Muhammad v. Muzammal Khan and 3 others PLD 1967 SC 317; (ii) Mohsin Ali and another v. The State 1992 SCMR 229; (iii) Abdul Rehman v. Muhammad Hayat Khan and others 1980 SCMR 311; (iv) Marghoob Alam and another v. Shamas Din acid another 1986 SCMR 303; (v)
Sheikh Muhammad Yameen v. The state 1973 SCMR 622; (vi) Bashir Ahmad v. Zafar-ul-Islam and others PLD 2004 SC 298; (vii) Kh. Nazir Ahmad's case AIR 1945 PC p. 18; (viii) Shahnaz Begum V. The Honourable Judges of the High Court of Sindh and Balochistan, and another PLD 1971 SC 677; (ix) Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142.
9. According to provisions of Cr.P.C. it is for the Investigating Officer to collect all the facts connected with the commission of offence and if he finds that no offence is committed, he may submit a report under section 173, Cr.P.C. to the Allaqa Magistrate. On the other hand, if on the basis of his investigation he is of the opinion that the offence has in fact been committed, he has to submit report accordingly. However, the report of the. Investigating Officer cannot be the evidence in the case. The investigation is held with a view to ascertaining whether or not an offence has been committed. The inquiry, or trial, as the case may be has to be conducted by the Magistrate. If the police, is restrained from investigating the matter, their statutory duty, it will in our opinion betant amount to acting against the law as held in Kh. Nazir Ahmad's case AIR 1945 PC p.
18. The relevant observation is as follows:- "Just as it is essential that everyone accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in the matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as .has been shown there is a statutory right on the part of the police under sections 154 and 156 to investigate the circumstances of an alleged cognizable crime thought requiring any authority from the judicial auhorities, and it would as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court under section 561-A. The functions 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 when moved under section 491, Criminal Procedure Code, to give direction in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it and not until then."
10.This Court has reconsidered and approved the aforesaid judgment in Shahnaz Begum's case PLD 1971 SC 677 and again reconsidered and approved in Brig. Imtiaz's case 1994 SCMR 2142.
11. The question of law has also been considered by this Court in Kh. Fazal Karim's case PLD 1976 SC 461 and laid down the following principle.
"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 abstruct or divert the ordinary course of criminal procedure. Reference may be made in this regard to this Court's judgment in Ghulam Muhammad PLD 1967 SC 317. The same view was reiterated by this Court in Shahnaz Begum's case PLD 1971 SC 677. It was observed in the case of Ghulam Muhammad vs. Muzammal Khan. This Court had occasion to point out that the power given by section 561-A, Cr.P.C. can certainly not be utilized as to interpret or divert the ordinary course of criminal procedure as laid down in procedural statute."
12. The contention of the learned counsel for the respondent that the 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 and another 1996 CMR 186.
13. It is pertinent to mention here that the learned High Court observed in the impugned judgment in para. 6 in the following terms- "the factum as who had placed the said Farad Malkeet on the file is still under inquiry by virtue of order, dated 2-2-2005 (Annexure "M)........."
In view of the above, this appeal is, therefore, accepted accordingly. The impugned order of the learned High Court is hereby set aside.