Through the instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners namely Muhammad Waseem and Muhammad Nadeem Anjum, seek quashing of the FIR No.130 of 2022, dated 27.02.2022, registered in respect of an offence under section 406 PPC at the Police Station City Khanpur , District Rahim Yar Khan.
2. Precisely , the facts necessary for the disposal of instant petition are that the FIR No.130 of 2022, dated 27.02.2022, was registered in respect of an offence under section 406 PPC at the Police Station City Khanpur , District Rahim Yar Khan containing the allegations as against the petitioners, namely Muhammad Waseem and Muhammad Nadeem Anjum, that after being entrusted with an amount of Rs.48,00,000/- from Muhammad Ishaaq, the complainant of the case, the petitioners dishonestly misappropriated the same.
3. The learned counsel for the petitioners contended that the FIR No.130 of 2022, dated 27.02.2022, registered in respect of an offence under section 406 PPC at the Police Station City Khanpur , District Rahim Yar Khan should not have been registered as the narrative of the same did not reveal commission of any cognizable of fence.
4. I have heard the learned counsel for the petitioners and have also gone through the record of this case with his able assistance.
5. A perusal of the record reveals that the FIR No.130 of 2022, dated 27.02.2022, was registered in respect of an offence under section 406 PPC at the Police Station City Khanpur , District Rahim Yar Khan containing the allegations as against the petitioners, namely Muhammad Waseem and Muhammad Nadeem Anjum, that after being entrusted with an amount of Rs.48,00,000/- from Muhammad Ishaaq, the complainant of the case, the petitioners dishonestly misappropriated the same. The narrative of the F.I.R is supported by the statements recorded under section 161 Cr.P.C. durin g the investigation of the case of three witnesses namely Muhammad Luqman, Muhammad Abu Bakar and Muhammad Ahsaan. The question as to whether the above-mentioned amount was entrusted to the petitioners in lieu of some business transaction or otherwise cannot be answered at this stage without recording of evidence. The question of delay in reporting the matter and its impact on the prosecution case shall also be determine d at the appropriate stage however at this stage it cannot be considered as a reason for quashing the very F.I.R. In this regard reliance is placed on the case of "Rafique Bibi Versus Muhammad Sharif and others" (2006 SCMR 512) wherein the august Supreme Court of Pakistan has held as under:- "6. It is to be observed that the effect of lodging the F.I.R. with delay is always left to be considered by the trial Court seized with the matter because in every case delay in lodging the F.I.R. had not been considered fatal by the superior Courts and if lodging of F.I.R. with delay is explained convincingly then the Court would not terminate the proceedings on this score. As far as question of satisfying the delay is concerned, it entirely relates to the factual aspect of the matter . So far as the second ground prevailing upon the High Court with regard to converting a civil dispute into a criminal liability is concerned, in this behalf it is to be noted that there is no bar to initiate both the proceedings i.e. civil and criminal simultaneously . Readily reference may be made to M. Aslam Zaheer v. Ch. Shah Muhammad and another 2003 SCMR 1691 . So far as the question of mala fides as it has been attributed to the petitioner is concerned, it is a question of fact requires proof by producing evidence as it has been held in the case of Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 ."
Prima facie, there does exist evidence that the petitioners were entrusted with the amount as mentioned in the F.I.R and they dishonestly misappropriated the same. It is also settled law that criminal proceedings are not barred in presence of civil proceedings and that civil and criminal proceedings can be proceeded simultaneously . Guidance in this respect is taken from the case of "Seema Fareed and Others Versus The State and another" (2008 SCMR 839 ) wherein the august Supreme Court of Pakistan has held as under:- "It is well-settled that, a criminal case must be allowed to proceed on its own merits and merely because civil proceedings relating to same transaction have been instituted it has never been considered to be a legal bar to the maintainability of criminal proceedings which can proceed concurrently because conviction for a criminal offence is altogether a different matter from the civil liability . While the spirit and purpose of criminal proceedings is to punish the offender for the commission of a crime the purpose behind the civil proceeding s is to enforce civil rights arising out of contracts and in law both the proceedings can co-exist and proceed with simultaneously without any legal restriction."
No doubt, this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and section 561-A of Criminal Procedure Code has the authority to quash an FIR but this jurisdiction is required to be exercised only in exceptional and rare cases. The power of quashing an FIR and criminal proceeding should be exercised sparingly by the courts and the same has to be done with circumspection. The exercise of the said jurisdiction in routine will not only affect the due process of law but also result in devastating the exercise carried out by the Investigating Agency . As observed above, the case in hand is at its inception, the investigation of the case is yet to be concluded, and the prosecution has to prove its case by producing relevant and admissible evidence. It would neither be just nor fair and proper to stifle the criminal proceedings at the initial stage. If at any stage the petitioners are of the view that they are innocent, they have a remedy under sections 249-A of the Code of Criminal Procedure, 1898 to seek his acquittal. Guidance in this respect is taken from the case of "Haji Sardar Khalid Saleem versus Muhammad Ashraf and others" (2006 SCMR 1192) wherein the august Supreme Court of Pakistan has held as under:- "In view of the aforesaid discussions the learned Lahore High Court erred in law to accept the constitutional petition of respondent No.1 vide order , dated 23-10-2003 which is not in consonance with the law laid down by this Court coupled with the fact that in the present case, it is an admitted fact that the cheque in question was issued by the respondent to the petitioner which was dishonoured, therefore, ingredients of sections 420, 468 and 471 of P.P.C. are, at least prima facie, attracted. Therefore, this petition is converted into an appeal which is allowed and the impugned order is set aside."
Guidance in this respect is also taken from the case of "Col. Shah Sadiq versus Muhammad Ashiq and others"
(2006 SCMR 276 ) wherein the august Supreme Court of Pakistan has held 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 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 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. M.K.G. 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 Of ficer 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 quash ing 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 and another 1986 SCMR 303; (v) Sheikh Muhammad Yameen v.
The State 1973 SCMR 622; (vi) Bashir Ahmad v. Zafar-ul-Islaam 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 be tantamount 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 without requiring any authority from the judicial authorities, 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."
6. In the light of above discussion, the instant petition, being devoid of any merit, is accordingly dismissed.