SABIT ULLAH KHAN, J:- Through the instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with section 561-A the Code of Criminal Procedure, 1898 (Cr.P.C), the petitioner namely Atta Hussain is seeking quashing of order of the learned Justice of Peace (Additional Sessions Judge, Dir Lower at Chakdarra) dated 08.12.2023, whereby the application u/s 22-A of the respondent No.1 namely Altaf Gauhar was allowed and the S.H.O of the Police Station Chakdara, District Dir Lower was directed to register an F.I.R against the petitioner under the relevant provisions of law.
2. Brief facts of the case are that on 04.10.2023, respondent No.1 has filed an application u/s 22-A Cr.P.C. before the learned Justice of Peace for registration of a criminal case against the present petitioner, on the ground that he had issued Cheque No. 00000101 dated 10.08.2023 of Habib Bank Limited, Sheringal Branch, for payment of the outstanding amount of Rs. 10,000,000/-, however, when the said cheque was deposited by respondent No.1 in his account at Bank Islami, Chakdarra Branch, the same got dishonoured due to insufficient funds in the account of the petitioner vide bank return memo dated 11.08.2023. Thereafter, the petitioner did not respond to his calls. It was alleged that the petitioner has committed fraud while issuing the cheque with dishonest intention.
The learned Justice of Peace directed the local police to conduct a preliminary inquiry and submit a report, which was accordingly submitted on 06.11.2023. Notice of the application was issued to the present petitioner and after hearing the, arguments of the parties, the learned Justice of Peace allowed the application of respondent No.1 vide order dated 08.12.2023, as per the terms mentioned in the opening para of this judgment, hence, this petition.
3. Arguments heard. Record perused.
4. It was not the contention of the present petitioner that he had not issued the cheque, which got dishonoured due to insufficient funds in his bank account, however, he has raised certain other grounds: firstly that the order directing registration of the criminal case was not sustainable as there was no direct transaction between the petitioner and respondent No.1/ complainant; secondly that a civil suit regarding the matter is already pending adjudication between the parties wherein, through an order dated 15.11.2023, the respondent No.2 was directed not to hand over any of the cheques including the subject cheque to any third party; and thirdly that the cheque in question was issued just as a security. Nevertheless, when the petitioner has admittedly issued the cheque from his bank account for a specific date towards the payment of an outstanding amount i.e., the sale consideration of a property then even if the transaction is disputed, the dishonour of the cheque would, prima facie, constitutes a cognizable offence u/s 489-F PPC. In similar circumstances, in the case of "Haji Muhammad v. Justice of Peace and others" (2016 YLR Note 93), the High Court has declined the request of the accused for quashing of the FIR. Even otherwise, in the present matter, the contents of the application filed by the respondent No.1 u/s 22-A Cr.P.C. before the learned Justice of Peace if examined in juxtaposition with the materials available on record, would obviously disclose the commission of a cognizable offence in the context that the issuance of the cheque was prima facie with dishonest intention. There are documents available on the record which, on the face of it, support the version of the prosecution.
5. As far as the assertion of the petitioner that he has been falsely implicated by the respondent No.1/ complainant on the basis of mala fide, ill will or to harass and humiliate him at the instance of respondent No.2 is concerned, at this juncture no credible or convincing material is available on record to fortify such allegations rather all such assertions relate to factual controversies that would go to the merits of the case and are to be adjudicated upon by the learned trial Court after recording of evidence, whereas it is a well-settled law that where a case involves factual controversies requiring determination through a detailed inquiry, the High Court, while exercising its constitutional jurisdiction under Article 199 of the Constitution, cannot undertake or resolve such factual controversy. This view has been taken by the Superior Courts in the cases of "Mst. Tayye ba Ambareen and another v. Shafqat Ali Kiyani and another" (2023 SCMR 246), "Amir Jamal and others v. Malik Zahoor-ul-Haq and others" (2011 SCMR 1023), and "Fida Hussain v. Mst. Saiqa and others" (2011 SCMR 1990).
6. It may also be noted here that although the petitioner has claimed to have instructed the concerned bank to stop payment but the return memo of the subject cheque clearly indicates the reason for dishonour as `insufficient funds' in the petitioner's bank account, so, prima facie the record would negates this contention. In the cases of "Col. Shah Sadiq V/s. Muhammad Ashiq and others" (2006 SCMR 276) and "Dr. Sikandar Ali Mohi.-ud-din vs. Station House Officer and others" (2021 SCMR 1486), it was held by the apex Court that if prima facie an offence has been committed, the ordinary course of trial before the Court should not be allowed to be defeated by resorting to constitutional jurisdiction of High Court under Article 199 of the Constitution of Islamic Republic of Pakistan or inherent powers of the High Court u/s 561-A Cr.P.C. Reliance may also be placed on the cases of 'Haji Sardar Khalid Saleem Vs. Muhammad Ashraf and others' (2006 SCMR 1192) & "Muhammad Ali Vs. Samina Qasim Tarar and others" (2022 SCMR 2001). When a similar situation came up before this Court in the case of "Faisal Khan v. The State and another"
(2020 PCr.LJ 471), wherein the prayer for quashing of the FIR was declined on the ground that investigation into a cognizable offence cannot be interfered with particularly when adequate legal remedies are available. The view of this Court behind the dismissal of the petition for quashing of the FIR was as under: "After registration of a criminal case, the Investigating Agency had a statutory duty and obligation to investigate a cognizable offence and without exceptional circumstances quashing of FIR during investigation would amount to throttling the investigation process which was not permissible under the law. If such process was scrutinized through constitutional jurisdiction, that would amount to interfere in the investigation of a criminal case. In the present case, a proper FIR had been registered against the petitioner regarding a cognizable offence, therefore, he could not be allowed, at such a stage, to avoid ordinary course of investigation and trial before court. High Court declined to interfere with the investigation of the case and that too, when the petitioner had adequate remedies under the law."
Similar was the view of the Hon'ble Supreme Court of Azad Jummu and Kashmir in the case titled "Mumtaz Hussain v. State and 2 others" (2021 SCR 605) in which it was ruled 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 has committed an offence or not. The High Court should not embark upon an inquiry into the merits and demerits of the allegations and quash the proceedings without allowing the investigating agency to complete its task at first."
7. It was also one of the contentions of the petitioner that he has filed a civil suit, which is still pending before the learned Additional District Judge Swat, for cancellation of the deeds dated 17.05.2023, on the strength of one of the said deeds, the cheque in question was issued over by the petitioner. However, the cheque number is clearly mentioned in the deed, and notably, the said cheque was dishonoured on 11.08.2023, whereas the civil suit was filed by the petitioner thereafter on 15.11.2023 before the learned District Judge, Swat, which, prima facie, appears to be an attempt of the petitioner to create a defence and to obstruct the criminal proceedings. Even otherwise, the civil proceedings initiated by the petitioner on the basis of the aforementioned deeds and the criminal proceedings set in motion on the basis of the subject dishonoured cheque are two distinct legal proceedings, which cannot be amalgamated and doing so would frustrate the very object and intent of the legislature. It is also a settled principle that even if a civil dispute is pending, an FIR cannot be straightaway quashed merely on that basis as civil and criminal proceedings can lawfully proceed simultaneously. In the case of "Seema Fareed and other Vs. The State and another" (2008 SCMR 839), it was observed by the apex Court that: "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 proceedings 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."
(underlined supplied)
More-so, in the case of "Bashir Ahmad Vs. Additional Sessions Judge" (2010 YLR 940), in a quite similar controversy, it was held that the criminal proceedings were not barred during the pendency of the civil proceedings. A similar view was also adopted in the case of "Ch. Javed Mehmood Vs. The State" (2007 YLR 347) that civil and criminal proceedings can continue side by side.
8. It is also worth noting that although FIR No.320 was registered on the basis of a cheque mentioned in one of the ibid deeds and this fact was acknowledged by the police in its inquiry report but it was not considered by the learned Justice of Peace as a ground to refuse registration of the criminal case regarding the present cheque. In view of the strenuous contention raised on this aspect, when the learned counsel was asked to thoroughly explain the legal position, he could not satisfactorily demonstrate that the present offence and the earlier FIR arise out of the same transaction or that the doctrine of double jeopardy is attracted or that on any other ground, the registration of the present criminal case would amount to an abuse of the legal process. On the contrary, both cheques appear to have arisen from separate and independent transactions, as appears their issuance as distinct instruments. Prima facie, at the time of registration of the ibid earlier FIR, the respondent/ complainant had no knowledge that the subject cheque would also bounce. Notably, at the time of approach of the respondent/ complainant for registration of the earlier FIR, the mens, rea of the petitioner behind the dishonour of the subject cheque was not clearly established. It is evident from the record that in the instant matter, each bounced cheque constitutes an independent offence as each episode of dishonour causes a separate harm/ injury to the complainant for initiation of legal proceedings, therefore, the principle laid down by the apex Court in the case titled "Mst. Sughran Bibi v. The State" (PLD 2018 SC 595) that there can be only one FIR regarding an incident, would not be attracted in the circumstances of the present case. In the given facts and circumstances of the case, the concerned SHO was under a legal obligation to have proceeded as per the provision of section 154 Cr.P.C upon receiving the report of the complainant, which was disclosing commission of a cognizable offence.
9. Needless to note here that the High Court u/s 561-A Cr.P.C can exercise its inherent powers only in the matter where an alternate mode for dispensation of justice is not available to a party. In the case of "Shahnaz Begum vs. The Hon'ble Judges of the High Court of Sind and Baluchistan (PLD 1971 Supreme Court 677), the Hon'ble Supreme Court of Pakistan has held that the High Court in exercise of its constitutional jurisdiction should not interfere in police investigation. In the recent past, this view was also endorsed by the Hon'ble Supreme Court in the case of "F.I.A. through Director General, FIA and others v. Sved Hamid Ali Shah and others" (PLD 2023 SC 265), wherein it was held that the High Court has no jurisdiction u/s 561-A Cr.P.C. to quash an FIR or interfere in police investigation as the said provision pertains only to judicial proceedings and does not extend to actions taken by other authorities such as the police. The relevant portion of the judgment reads as under: "High Court has no power under Section 561-A, Cr.P.C. to quash an FIR or an investigation proceeding; therefore, applications filed under Section 561-A, Cr.P.C. in the High Court for quashing an FIR and investigation proceeding arc not maintainable. This is because jurisdiction of a High Court to make an appropriate order under Section 561-A, Cr.P.C., necessary to secure the ends of justice, can only be exercised with regard to the judicial or court proceedings and not relating to proceedings of any other authority or department, such as FIR registration or investigation proceedings of the police department"
Similar view has also been adopted in the cases titled Haji Sardar Khalid Saleem Vs. Muhammad Ashraf and others' (2006 SCMR 1192), "Muhammad Ali Vs. Additional I.G Faisalabad' (PLD 2014 SC 753), and Waseem Khan Vs. Banaras Khan Jadoon and 3 others' (2019 PCr.LJ 154, Peshawar Abbottabad Bench). In the case of "Dr. Ghulam Mustafa Vs. Vs. The State and others" (2008 SCMR 76), the order of the High Court quashing an FIR was set aside by holding that: "High Court has no jurisdiction whatsoever to take the role of the investigating agency and to quash the FIR, while exercising constitutional power under Article 199 of the Constitution or under section 561-A, Cr.P.C. unless and until very exceptional circumstances existed"
On this legal analogy, this Court too in the case of "Balqiaz Ali Shah alias Atta Ullah Jan Vs. Wrashem Gul and 06 others" (PLD 2025 Pshawar 36), has dismissed the petition for quashing of an FIR, while relying on the judgment of the apex case-in Ghulam Mustafa' case (supra). This Court has observed that: "5. Of course, this Court has the powers to quash FIR but in exceptional circumstances, i.e., where the allegations made in the FIR, on the face of it, do not constitute a cognizable offence, or the allegations made in the FIR are false or it reflects that an attempt has been made to convert the civil liability into a criminal case, or where there is an express legal bar in any of the provisions of the Code or the concerned Act, under which a criminal proceeding is instituted. In this behalf, reliance can be placed on the case reported as Brig. (Retd.) Imtiaz Ahmad v. The Government of Pakistan (1994 SCMR 2142), wherein the apex Court observed that:- "The function of the judiciary and the police are complementary not over lapping 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. Control over the investigation exercised by the court was prejudicial to the accused and detrimental to the fairness of the procedure apart from being Without jurisdiction. High Court cannot assume the role of investigator. This could obviously not be done, for the authority to register and investigate a criminal case in law vests in the police and not in Court".
Reliance may also be placed on the case titled "Zahoor Khan vs. The State and 05 others" (2021 Peshawar Cr.LJ 446) wherein it was held that: "No doubt, this Court has the powers to quash FIR but in exceptional circumstances, i.e. where the allegations made in the FIR, on the face of it, do not constitute a cognizable offence, or the allegations made in the FIR are so illogical on the basis of which no prudent person can ever reach to a just conclusion that there is sufficient ground for proceeding against the accused, or where there is an express legal bar in any of the provisions of the Code or the concerned Act, under which a criminal proceeding is instituted."
10. It is also a settled law that the provisions of section 561-A Cr.P.C would not be applied for determining the guilt or innocence of an accused at premature stage before proper investigation or trial as held in the cases of Liaqat Ullah Khan Vs. The State and 06 others" (PLD 2015 Peshawar 115) and "Bashir Ahmad Vs. Zafrul-Islam" (PLD 2004 Sc. 298) and "Noman Junejo through Authorised Attorney and another Vs. Federal Investigation Agency through Director General and 3 others (PLD 2018 Sindh 1). In the latter case, the petition for quashing of the FIR was dismissed by the High Court, holding that: "Throwing out FIR which was largely based on documentary evidence without giving opportunity to prosecution to prove its allegations by adducing evidence would be an improper exercise of powers of High Court under Art.199 of the Constitution. Petitioners, in the present case, could not demonstrate sufficient grounds to attract quashment of FIR and if investigation was restrained, same would tantamount to acting against law. Quashing of FIR under the Constitutional jurisdiction of High Court would create chaos for a summary disposal of case which may culminate into injustice. High Court could not interfere in the investigation and if prima facie offence had been committed, ordinary course of trial should not be allowed to be deflected by resort to Constitutional jurisdiction of High Court and alternate remedies provided in the Cr.P.C. were available to the petitioners". (emphasis supplied).
It was held by the Privy Council (prior to partition of sub-continent) in the case titled "Emperor v.
Khawaja Nazir Ahmed" (AIR 1945 PC 18) that: "While examining an FIR, 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. Further held the Power of quashing should be exercised sparingly with circumspection, as it has been observed, in the rarest of rare cases."
In the matter in hand, besides proving his innocence during trial, the petitioner can also apply to the learned trial Court for his discharge/ acquittal u/s 249-A or 265-K Cr.P.C etc. Reference may be made to the case of "Director General Anti-Corruption Establishment Lahore and others Vs. Muhammad Akram Khan and others" (PLD 2013 SC 401). Most recently, the Supreme Court of Pakistan in the case titled "The State through Prosecutor General Punjab, Lahore v. Chaudhry Mohammad Khan etc." (Civil Petitions No.671-L and 672-L of 2017), decided on 27.09.2024 (2024 SCP 368), has set aside the judgment of the High Court dated 21.12.2016, which had quashed an FIR.
The apex Court held that where a prima facie offence is made out, the proper course is to allow the trial to proceed before a competent court in accordance with law and such proceedings should not be short-circuited by invoking the constitutional jurisdiction of the High Court. In said case, reliance was also placed on the Indian Supreme Court's judgment rendered in the case of "Central Bureau of Investigation and others v. Thommandru Hannah VIjavalakshmi and others" (AIR 2021 SC 5041), wherein it was reiterated that the police have a statutory right and obligation to investigate cognizable offences under the relevant provisions of the Cr.P.C., and Courts should not obstruct such investigations unless no offence is disclosed. The power to cancel an FIR should be used very carefully and only in extremely exceptional cases. At the initial stage, the Courts must refrain from assessing the truthfulness or reliability of the allegations and criminal proceedings should not be scuttled prematurely. The roles of the judiciary and the police are distinct yet complementary and interference by the Court at the investigation stage is unwarranted unless non-interference would lead to a miscarriage of justice. The inherent powers under the Code of Criminal Procedure or the Constitution do not authorize arbitrary action by the Courts. The FIR is not expected to be an exhaustive document disclosing every fact, and Courts should not draw conclusions on hazy or incomplete allegations. Investigations must be allowed to reach their logical conclusion, after which the Court may act on the police report in accordance with law.
Learned counsel for the petitioner could not agitate any valid or legal ground for grant of the prayer in his favor as set in the instant petition whereas the grounds urged by him at the bar or mentioned in the instant petition are alien to the law on the subject.
11. In view of the foregoing legal discussion and the factual aspects of the matter, we hold that the High Court under Article 199 of the Constitution read with its inherent powers u/s 561-A Cr.P.C, has no authority (i) to quash an FIR except in rare and exceptional circumstances where the complaint discloses no cognizable offence or if is patently mala fide or constitutes a clear abuse of the legal process; (ii) quashing an FIR, at the investigation stage, amounts to prematurely interfering in the lawful functioning of investigative agencies, which is neither the object nor the scope of constitutional jurisdiction of the High Court; (iii) once a cognizable offence is disclosed, registration of an FIR u/s 154 Cr.P.C. becomes a statutory obligation and any assessment of the veracity, sufficiency or reliability of the allegations falls exclusively within the domain of the investigating agency and the trial Court; (iv) the mere pendency of civil proceedings, speculative improbability of conviction or interim relief granted earlier cannot override this settled legal position; and (v) the High Court's assumption of such power without clear evidence of mala fide is legally untenable and runs contrary to the consistent principles laid down by the superior Courts, which emphasizes that factual controversies and questions of evidence must be resolved through a full-fledged trial and not by short circuiting the criminal justice process through invoking the writ jurisdiction of the High Court.
12. Consequent to the above, the instant petition, being devoid of any merit, is hereby dismissed.