Through this Constitutional petition filed under Article 199 of the Constitution of. Islamic Republic of Pakistan, 1973, the petitioner Muhammad Saqib has made the following supplication: "It is therefore most respectfully prayed that by accepting this writ petition, the respondents may kindly be directed to delete the offence under Section 7-ATA, 1997 in case FIR No. 1417/2021 dated 29.12.2021 registered at Police Station City Lodhran in the interest of justice.
Any other relief which this Hon'ble Court deems fit may also be granted to the petitioner."
2. Facts relevant for disposal of instant writ petition are that the petitioner who is an Executive Engineer MEPCO Sub-Division, Lodhran states that a criminal case F.I.R. No. 1417/2021 dated 29.12.2021 for offences under sections 342, 353, 186, 506-B, 148, 149, PPC and Section 7 of the Anti- Terrorism Act, 1997 at Police Station City Lodhran, Tehsil and District Lodhran was registered against his subordinates. It was alleged in the FIR that on 29.12.2021 the complainant raided the office of SDO MEPCO, Lodhran on the information that he receives illegal gratification from the people and in that connection a trap raid qua receiving illegal gratification was conducted under the supervision of learned civil Judge, Lodhran at the office of SDO MEPCO Lodhran namely Qaiser Izhar (accused).
The said SDO' was apprehended red-handed while receiving illegal gratification and after completion of the proceedings when the complainant along with learned Civil Judge was returning back then the SDO along with his other companions mentioned in the FIR and 40/50 unknown persons stopped them on gun point and while wrongfully confining them closed the main gate. It was further alleged in the FIR that if the SDO was not released then they will have to face the dire consequences. In the meanwhile one unknown person called emergency service 15, whereupon, the local police reached at the spot, upon which, the said SDO and his companions made resistance with the help of firearms, due to which, panic spread over there. The local police after hectic efforts broken the lock and opened the main gate of MEPCO office, Lodhran and, succeeded in rescuing the raiding team of FIA along with learned Civil Judge concerned. Hence, the above mentioned FIR.
3. It is contended by learned counsel for the petitioner that a false and frivolous FIR has been registered against subordinates of the petitioner and Respondents Nos. 1 and 2 have falsely implicated the petitioner's staff members in this case. Learned counsel has argued with vehemence that it is the mandatory duty of Respondent No. 1 to delete Section 7-ATA, 1997 from the above mentioned FIR because the said penal provision has wrongly been incorporated; that this writ petition may kindly be accepted and a direction for deletion of Section 7-ATA, 1997 may be passed in the interest of justice.
4. Contrarily, learned Assistant Advocate General appeared on Court's call and submitted that this petition is not maintainable because investigation is in progress. Learned Law Officer has further argued with vehemence that every person is responsible for his own deeds; that the petitioner do not fall within the remit of 'aggrieved party or aggrieved person', hence, he has no locus stanch to file the present writ petition.
5. After hearing the arguments advanced by learned counsel for the parties and going through the documents appended with this petition, we have straightaway noticed that the petitioner is not an accused of the supra mentioned FIR. In fact the above mentioned FIR has been registered against subordinates of the petitioner, thus, the petitioner do not fall within the definition of "aggrieved party" or "aggrieved person". There is no cavil to the proposition that jurisdiction of this Court is conceived and regulated through Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and it is sine qua non for initiation of proceedings under Article 199 of the Constitution and only an aggrieved person should have a locus standi to the relief prayed for or in other words the petitioner should be an aggrieved person or aggrieved party from the impugned action. A Full Bench Judgment of this Court is very much clear on this point reported as "Mst. Nazia vs. State through SHO and others" (PLD 2019 Lahore 373) wherein it has been held as under: "...On the touchstone, the learned counsel were specifically asked as to how the petitioner is aggrieved of registration of an F.I.R, wherein, she is alleged to be an abductee or may also be called as prosecution's star witness but surely not an accused of the occurrence reported therein, but the learned counsel have not been able to come out with any answer. We are however, convinced that petitioner (abductee) or any witness of the FIR, cannot be termed as "aggrieved party" as by no stretch of imagination it can be said that any of their fundamental right is infringed by registration of FIR; they have suffered any loss; they have been wrongfully deprived or refused something which they were legally entitled to, or any restriction has been imposed upon them.
Consequently, we hold that abductee/witness do not fall within the definition of "aggrieved party" to maintain a writ petition to seek quashing of FIR. The Office objection, therefore, upheld."
6. We have also noted that sub-section (7) of Section 9 of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 being very much relevant in this case is also hereby reproduced as infra:
9. Conduct of Prosecution 1) The Prosecutors shall be responsible for the conduct of prosecution on behalf of the Government.
2) ----------------------------------------- 3) ----------------------------------------- 4) ---------------------------------------- 5) ---------------------------------------- 6) ---------------------------------------- 7) The prosecutor shall submit, in writing, to the Magistrate or the Court, the result to of his assessm ent as to the available evidence and applicability of offences against all or any of the accused as per facts and circumstances of the case and the Magistrate or the Court shall give due consideration to such submission.
7. The supra mentioned quoted provision of law clearly demonstrates that the prosecutor has the power to scrutinize the available evidence and applicability of offences against all or any of the accused as per facts and circumstances of the case and as such the addition or insertion of any offence falls within the exclusive domain of the prosecutor. The question whether the Prosecutor has rightly deleted and added the section will better be seen and adjudged by the learned trial Court at the time of framing of the charge but the petitioner cannot invoke the constitutional jurisdiction of this Court for the relief prayed for as it amounts to interfering with the process of investigation which is not the mandate of taw.
8. It is also noteworthy that the overall incharge of a criminal case is the Area Magistrate who, even during the progress of an investigation, gets many opportunities to go through the record of investigation conducted by the police and in an appropriate case and at an appropriate stage he can require the Investigating Officer to consider addition or deletion of any penal provision. After submission of a report under Section 173, Cr.P.C. the Court seized with the trial of the case can take cognizance of any offence disclosed from the material available with the investigation even if the police have not invoked the relevant penal provision. Even at the time of framing of the charge a trial Court can frame a charge in respect of any offence made out from the record even if the same finds not mentioned or wrongfully incorporated in the report submitted under Section 173, Cr.P.C. With so many opportunities being available with the Magistrate and the trial Court regarding rectification of a mistake committed by the police in this connection, it would not be appropriate for this Court to interfere with such a matter at this premature stage. A reference in this respect may be made to the case of Nadeem Sarwar v. Station House Officer, Police Station Sardar, Hafizabad and 2 others (2000 YLR 756) wherein this Court had handled a similar situation in the following manner: "It has been prayed by the petitioner through the present petition that Section 322, PPC may be ordered to be deleted from the said F. I. R. as the same is not attracted to the facts alleged in the F.I.R. At the outset we must observe that this petition is diabolically misconceived to this extent.
Controlling the insertion or deletion of a section of a penal statute in Column No. 3 of an F.I.R. is surely not a function of this Court while exercising its writ jurisdiction under Article 199 of the Constitution. All that is required in a situation and at the stage like the one in the present case is that the petitioner is to convince the Investigating Officer of the case that a certain provision invoked in the F.I.R. may not be pressed against him as the same is not attracted to the allegations contained in the narrative part of the. F.I.R. The real F.I.R., is the narrative part of the F.I.R., and not Columns Nos. 1 to 5 thereof which are to be filled in by a Moharrir or other police official. A similar objection can surely be raised by the petitioner not only before the Investigating Officer but also before the Court dealing with his bail application or holding his trial. This petition calls for no occasion by this Court to interfere in the matter at such a stage."
9. In the backdrop of above, we are constrained to hold that the constitutional jurisdiction of this Court in all the cases cannot be invoked as a matter of right, course or routine, rather such jurisdiction has certain circumventions which the Court is required to keep in view while exercising its extraordinary discretionary powers, as the conditions mentioned in Article 199 of the Constitution are obviously meant for the purposes of regulation of the Court's jurisdiction and the availability of "other remedy" is one of such limitations. The petitioner has no explanation to offer, as to why the "other remedy", which is a definite one in nature; is time bound and is, specifically designed and prescribed by the legislature, but has not been availed for any good reason, by the accused persons. Whether still this Court should have imperatively interfered in the matter and the refusal thereof, should be construed as an erroneous or patently illegal order or an order suffering from any jurisdictional 'defect calling for the intervention in its instant jurisdiction? The answer is in negative. In the above context it shall be quite germane to rely upon the judgment of the Hon'ble Supreme Court reported as The Presiding Officer v. (1) Sadruddin Ansari and (2) Lal Muhammad Bin Yousuf (PLD 1967 SC 569), in which it has been held as under: "Another valid reason for so declining to interfere is because by so doing it would involve itself into a field of investigation which is more appropriate for a tribunal rather than for a Court exercising the prerogative power. The fact, therefore, that an alternative remedy is provided by law should not only upon the above principles but upon general principles too disincline a Court to invoke its extraordinary jurisdiction in a case where such a remedy is still available."
10. For what has been discussed above, we find no merit in this Constitutional petition which is hereby dismissed in limine.