' Through this Constitutional petition Mst. Nasim Akhtar and five others have assailed the registration of case vide F.I.R. No,108, dated 18-5-1990, at Police Station Civil Lines, Dera Ghazi Khan under sections 452/380/149 and 148, P.P.C. On the ground of mala fides, and have prayed for a declaration to the effect that the very registration of the aforesaid case as well as the investigation is without lawful authority and of no legal effect.
2. Brief facts relevant for the disposal of this petition are that Mst. Nasim Akhtar petitioner No,1, who is not an accused in the F.I.R., was married with Muhammad Ramzan petitioner No,2, vide Nikah Nama dated 4-2-1990. As per averments made in the petition, respondent No,2, the father-in-law of petitioner No,2, in order to extort money and to grab the residential house given by petitioner No,2 to his wife, extended threats to petitioners Nos.1 and 2 that he would spoil their peaceful marital life, if his illegal demands were not acceded. Petitioner No,1 in order to preserve her marital life filed a suit for permanent injunction against respondent No,2 and others, in the Court of Civil Judge, Dera Ghazi Khan. The Civil Judge vide his order dated 17-5-1990, granted ad interim injunction against respondent No,2 and others which is placed on the record as Annexure `13/3'.
' On the basis of aforesaid averments, the learned counsel for the petitioners urged that the F.I.R.
Has been registered against the petitioners mala fide and an act done mala fide is an act without jurisdiction, hence respondent No,1 cannot proceed with the investigation of the above case. He has placed reliance on the following observations of their Lordships of the Supreme Court in Abdul Rauf v. Abdul Hamid Khan PLD 1965 SC 671:-- "A mala fide act is by its nature an act without jurisdiction. No legislature when it grants power to take action or pass an order contemplates a mala fide exercise of power. A mala fide order is a fraud on the statute. It may be explained that a mala fide order means one which is passed not for the purpose contemplated by the enactment granting the power to pass the order, but for some other collateral or ulterior purposes."
3. The learned counsel for the petitioners next contended that as the aforesaid F.I.R. Has been registered with mala fide act, hence it is liable to be quashed and the investigation which is being carried out by respondent No,1 should be stopped, being no investigation in the eye of law. He cited Shahnaz Begum v. The Honourable Judges of the High Court of Sindh and Balochistan PLD 1971 SC 677 and has placed reliance on the following observations:-- "If an investigation is launched mala fide or is clearly beyond the jurisdiction of the investigating agencies concerned then it may be possible for the action of the investigating agencies to be corrected by a proper proceeding either under Article 98 of the Constitution of 1962 or under the provisions of section 491 of the Criminal Procedure Code, if the applicant is in the latter case in detention, but not by invoking the inherent power under section 561-A, of the Criminal Procedure Code."
' In addition to that, the learned counsel for the petitioners has placed reliance on Mst. Sabai and another v. The State etc. 1988 P Cr. L J 1429, Mst. Haleema Bibi v. The State 1988 P Cr. L J 1575, and Ameer etc. v. S.H.O. Police Station Jhang etc. 1988 P Cr. L J 2032 to show that if the F.T.R. Is lodged with mala fides, then this Court has the power while exercising its Constitutional jurisdiction to quash that F.I.R., and if no offence is made out from the bare reading of the F.I.R, still this Court would quash the F.I.R. And stop the further investigation in the interest of justice.
4. The learned Additional Advocate-General has appeared at the preliminary stage in pursuance of the order of this Court, dated 27-5-1990 and has procured the attendance of the Police Officer who is seized of the investigation of the aforesaid case. The Investigating Officer has informed that the investigation is at a very preliminary stage and Mst. Nasim Akhtar who is the star witness of the prosecution has not so far made her statement before the police under section 161, Cr.P.C. He further assured this Court that if during the course of investigation, the petitioners were found innocent, then he would not file the challan.
5. The learned Additional Advocate-General submitted that he has no cavil with the legal proposition that if a case has been registered mala fide, which is proved from the record itself, then this Court has the jurisdiction under the Constitution to quash the F.I.R., as well as the investigation incidental thereto. He submitted that in order to arrive at a conclusion whether an act is mala fide in law or not, this Court would not enter into the realm of facts and decide controversial facts which require recording of further evidence and elaborate enquiry, and has placed reliance on Muhammad Saeed Azhar v. Martial Law Administrator, Punjab and others 1979 SCMR 484, where their Lordships observed:-- "Question of alleged mala fides on part of local police requires factual investigation. Factual investigation could not be undertaken by High Court in exercise of its writ jurisdiction."
' The learned Additional Advocate-General also submitted that on pure legal grounds, normally this Court while exercising its writ jurisdiction as well as power under section 561-A, Cr.P.C., would not like to quash the investigation, because under the provisions of Criminal Procedure Code, the police has got a statutory right to investigate a cognizable case. It is in very exceptional cases where the interest of justice demands that this Court would interfere in the investigation of a case.
He has placed reliance on the following observations of their Lordships of the Privy Council in Emperor v. Nazir Ahmad AIR 1945 PC 45:-- "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 matters which arc 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 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. 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, Cr.P.C., to give directions in the nature of habeas corpus."
' Similarly on the same point he placed reliance on Malik Ghulam Ahmad v. Muhammad Yousuf and others PLD 1976 SC 271, where their Lordships of the Supreme Court set aside the order of the High Court, whereby the learned Judges of the High Court quashed the investigation of the case on the ground that the Special Police Establishment was not empowered to investigate a case, where no interest in the Evacuee Property was involved, the learned Judges of the august Supreme Court observed, that in view of the observations referred to above the Special Police investigation at a preliminary stage cannot be interfered with or quashed.
6. With respect to the assertion of the learned counsel for the petitioners that the present F.I.R. Is the outcome of malice on the part of the complainant, hence it should be quashed, learned Additional Advocate-General submitted that this may be a motive for lodging the F.I.R. At the most, but on this sole ground without there being any supporting material on the record, this Court in view of the case-law cited above, would not quash the F.I.R., especially when it requires elaborate enquiry into the disputed facts, which cannot be undertaken in the writ jurisdiction. Additional Advocate- General submitted that except bare words of the petitioners that the complainant is a greedy person, hence he lodged the F.I.R. Falsely and maliciously, these assertions by itself, without any other material on the record, are not sufficient in the eye of law, to make the lodging of the F.I.R., a malicious or mala fide act. According to the learned Law Officer, the police during the course of investigation would probe into this aspect of the case, if it comes to the conclusion on the basis of material collected, the case is false, of course, then police would not file the challan in the Court, hence at this stage, it cannot be urged that the investigation being conducted by the police is without lawful authority, and requires interference by this Court in exercise of its Constitutional jurisdiction.
7. After hearing the learned counsel for the parties and examining their respective submissions, I find there is no material on the record, to show that the case has been registered mala fide, so the police be restrained from proceeding with the investigation, the allegation of mala fide mentioned in the petitioner requires detailed enquiry, which this Court would not like to undertake, while exercising its Constitutional jurisdiction.
8. The upshot of the above discussion is that the petitioners have failed to make out a case, that the F.I.R. Has been lodged mala fide or with ulterior motive. The case is at preliminary stage of investigation, the police after taking into account, the versions of both the parties, would arrive at a conclusion, whether the case is genuine or false, at this stage, this Court would not like to interfere with the investigation of the police. The petition is dismissed in limine. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.