1. SYED SHAHID BAHAR, J.----The above titled writ petition has been filed under Article 44 of Azad Jammu Kashmir Interim Constitution, 1974 to quash FIR bearing number 48/2020 dated 13.02.2020 registered at Police Station City Muzaffarabad, under sections 419, 420, 467, 468, 471, A.P.C. against petitioner.
2. Brief facts of the instant writ petition are that respondent No.4, herein, presented an application before Inspector General Police of Azad Kashmir for registration of criminal case against Yasir Shafique son of Shafique-ur-Rehman, petitioner herein which was sent to SSP Muzaffarabad, who after considering, sent the same to S.H.O. City Police Station Muzaffarabad, upon which impugned FIR bearing No. 48/2020 dated 13.02.2020 has been registered under sections 419, 420, 467, 468 and 471, A.P.C. against petitioner at City Police Station Muzaffarabad. The petitioner herein, through this constitutional petition prayed to quash the aforesaid FIR on different grounds.
3. The learned counsel for the petitioner Mr. Tariq Bashir, Advocate staunchly contended that the FIR has been lodged just to harass and humiliate the petitioner, therefore, the same is liable to be quashed. He further contended that the impugned FIR. has been registered to damage the business and professional skill of the petitioner, whereas, right of trade/business is protected fundamental right; and registration of FIR against the petitioner is based on mala fide. The learned counsel argued that the respondents did not bother to understand the nature of controversy, whereas, it is crystal clear that application submitted to I.G Police pertains to civil nature but respondents by violating the law took the cognizance of non-criminal case, therefore, impugned FIR is liable to be quashed. He further argued that FIR has been lodged after a long delay, therefore, the same is also not maintainable on this point.
4. Syed Asad Ali Kazmi, the learned counsel for respondent No.4 vehemently contended that the impugned FIR is on investigation stage and it is the duty of the Investigation Agency to start the investigation and thereafter draw conclusion whether in the light of evidence or circumstances to envisage that according to law a case for commission of alleged offences has been made out or not? He further contended that the petitioner did not take part in the investigation even for a single day under the garb of instant writ petition, moreover, petitioner firstly approached to the Session Court Muzaffarabad for bail before arrest, which is pending due to instant petition, thus, petitioner intentionally abuse the process of law, therefore, this petition is liable to be dismissed. He vehemently argued that this Court cannot assume the role of investigating agency for the purpose of appreciation of the material which is yet to be finalized by the investigation agency. He further argued that petitioner has been connected with the alleged offences and specific role has also been attributed in the impugned FIR thus, a fair trial is requirement of law and it is the liability of the petitioner to face the case as per nature, therefore, the instant writ petition is liable to be dismissed.
5. The learned counsel maintained that it is also settled principle of law that cases regarding civil and criminal liabilities can run simultaneously. He further maintained that FIR has been registered by lawful authority after due process of law which shall be tried by the competent Court. Finally, the learned counsel prayed for dismissal of the writ petition.
6. I have heard the learned counsel for the parties and gone through the record of the case with utmost care. Serious allegations have been levelled in the impugned FIR (chalked out under sections 419/420, 467/468 and 471, APC), A hence, termination of investigation or probe in such like matter is not justified.
7. Remedy of writ is an extra-ordinary relief and relief cannot be extended to the parties simply mere upon their whims and wishes without indicating, any violation of law.
8. Principle of trichotomy of powers which is delicately balanced in the Constitution cannot be disturbed as it grants powers to each organ to decide the matters in its allotted sphere. Thus, it is not appropriate to divert ordinary course of criminal procedure as laid down in procedural law.
9. Generally, it is within the province and allotted sphere of the Investigation Agency to dig out and probe the matter in order to ascertain the veracity and truthfulness of allegations. Despite fact such like proceedings are not immune from interference absolutely, there are certain exceptions in this regard if FIR is outcome of mala fide, without jurisdiction or amounts to misuse of process or law, definitely this Court can come for rescue of the aggrieved one by exercising the power of judicial review available under Article 44 of the Azad Jammu and Kashmir Interim Constitution.
10. The apex Court of Pakistan has laid down some infra principles in this regard in the case titled "Col. Shah Sadiq v. Muhammad Ashiq reported as 2006 SCMR 276.
11. "The learned High Court had no jurisdiction to quash the impugned FIR 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 objections 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 Investigation 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.
12. Extraordinary remedy provided in the Constitution is to be exercised in extraordinary circumstances. This Court is burdened with enormous duty to protect the life, liberty and other constitutionally guaranteed fundamental rights of the subjects of the State. The question that called for determination by this Court is whether the case portrayed by the petitioner in the instant lis calls for interference under Article 44 of the Azad Jammu and Kashmir Interim Constitution in order to quash the impugned FIR or not. In this connection it is significant to add here that Supreme Courts have already ordained certain general principles in this regard indicating eventualities quo exercise of constitutional jurisdiction for annulment of FIR. These infra grounds of attack can provide room to this Court for interference:-
(a) When the case is of no evidence;
(b) When the very registration of the case is proved to be mala fide on the face of record;
(c) When the case is of a purely civil nature, criminal proceedings are not warranted in law, especially to harass the accused;
(d) When there is serious jurisdictional defect; and
(e) When there is unexceptional delay in the disposal of the case causing deplorable mental, physical and financial torture to the person proceeded against.
13. Ready reference in this regard is 1995 MLD 615 case titled "Ch. Pervez Ellahi v. The Federation of Pakistan".
14. In a horizontal precedent 2015 PCr.LJ 1667 (Islamabad) general principles have been summarized and articulated as under:-
(i) The High Court is not vested with the power to quash a FIR under section 561-A of Cr.P.C on the grounds of mala fide or disclosing a civil liability.
(ii) Resort to the provisions of section 561-A of Cr.P.C. or Article 199 of the Constitution for quashing; a criminal case is an extraordinary remedy, which can only be granted in exceptional circumstances.
(iii) As a general rule powers under Article 199 of the Constitution cannot be substituted for the trial, nor can any deviation be made from the normal course of law.
(iv) The consideration to be kept in view for quashing of a criminal case is whether the continuance of the proceedings before the trial Court would be a futile exercise, wastage of time and abuse of the process of the Court, and whether an offence on the admitted facts is made out or not.
(v) The exercise of powers and jurisdiction under Article 199 of the Constitution is discretionary in nature; however, the same are to be exercised in good faith, fairly, justly and reasonably, having regard to all relevant circumstances.
(vi) While considering quashing of a criminal case in exercise of powers vested under Article 199 of the Constitution, the High Court is required to take into consideration the various alternate remedies available to a petitioner before a trial Court, inter alia, under sections 249-A and 265-K of Cr.P.C.
(vii) Besides the above, the other alternate remedies available under the law have been enumerated by the august Supreme Court in the case of Col. Shah Sadiq v. Muhammad Ashiq and others' [2006 SCMR 276] as follows:--
(a) To appear before the Investigating Officer to prove their innocence.
(b) To approach the competent higher authorities of the Investigation Officer having powers vide section 551 of Cr.P.C.
(c) After completion of the investigation, the Investigation Officer has to submit the case to the concerned Magistrate, and the concerned Magistrate has the 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 the accused person who claims to be innocent and who can seek relief without going through the entire length of investigation.
(viii) A criminal case registered cannot be quashed after the trial Court has taken cognizance of a case, as the law has provided an aggrieved person with efficacious remedies for seeking; a premature acquittal, if there is no probability of conviction or a case is not made out.
(ix) Prior to exercising jurisdiction under Article 199 of the Constitution, the High Court has to be satisfied that the trial Court has neither passed an order nor any process issued.
(x) Courts exercise utmost restraint in interfering with or quashing investigations already in progress, pursuant to statutory powers vested in the police or other authorities. Courts do not interfere in the matters within the power and jurisdiction of the police, particularly when the law imposes on them the duty to inquire or investigate.
17. The above principles of law have been enunciated and laid down in the cases of 'Director.
15. General, Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others' [PLD 2013 SC 401], Rehmat Ali and others v. Ahmad Din and others' [1991 SCMR 185], `Miraja Khan v. Gul Ahmed and 3 others' [2000 SCMR 122], Muhammad Mansha v. Station House Officer, Police Station City, Chiniot, District Jhang and others' [PLD 2006 SC 598], 'Col. Shah Sadiq v. Muhammad Ashiq and others' [2006 SCMR 276], 'Emperor v. Kh. Nazir Ahmad [AIR 1945 PC 18] and Shahnaz Begum v. The Ho'ble Judges of the High Court of Sindh and Balochistan and another' [PLD 1971 SC 677].
16. It is germane to mention here that FIR cannot be quashed or cancelled because matter pertains to civil liability or for that matter on account of pendency of any civil lis. As it is well settled that civil and criminal proceedings can go side by side simultaneously.
17. In view of above discussion, I have arrived at the conclusion that no eventuality arises quo interference by embarking upon the disputed question of facts and terminate the due course of investigation.
18. The upshot of above discussion is that no case for quashment of FIR is thus made out and writ petition is accordingly dismissed in limine.