' The petitioner, through this petition filed under section 561-A, Cr.P.C. Seeks quashment of F.I.R.
No,116, dated 9-4-1995 registered against him at Police Station Fateh Jang, for the offence under section 354, P.P.C. It is stated that the allegations made in the F.I.R. Are false and the registration of the case is the result of long-standing enmity between the complainant and the petitioner. It is further stated that the challan is yet to be submitted in Court.
2. The case came up for initial hearing on 29-6-1995. Learned counsel for the petitioner was asked to address arguments on the maintainability of the petition under section 561-A, Cr.P.C. For quashment of F.I.R., when the case is still at the investigation stage. The learned counsel sought time to further prepare the case. On 9-7-1995, when the case was relisted, he insisted that the petition under section 561-A, Cr.P.C. Was competent. He argued that in the exercise of its inherent jurisdiction this Court can quash the F.I.R., to secure the ends of justice. His submission is that although the case may still be at the investigation stage yet the High Court has inherent powers to quash an F.I.R. Which is registered to falsely implicate innocent persons with a view to cause harassm ent to them. In support of his submission that F.I.R. Can be quashed under section 561-A, Cr.P.C., the learned counsel has placed reliance on the following decided cases:--
(1) Jameel Ahmad Khan and others v. A.C. And others 1990 PCr.LJ 1475;
(2) Mst. Shabana Chaudhary v. Station House Officer, Police Station Akbari Gate, Lahore and 4 others PLD 1993 Lah. 416;
(3) Shahmand All and 6 others v. S.H.O. Police Station Gogera, District Okara and another 1993 PCr.LJ 2256, and
(4) Muhammad Aslam v. The State 1993 PCr.LJ 205.
3. The legal question which calls for decision in the present case is, whether an F.I.R. Can be quashed in a petition under section 561-A, Cr.P.C. When the case is still at the investigation stage and has not yet been sent in Court for trial.
4. All the four cases cited by the learned counsel are totally irrelevant to the controversy in hand. In the first three cases, writ petitions under Article 199 of the Constitution had been filed to seek quashment of F.I.Rs, Section 561-A, Cr.P.C. Had not been invoked in these cases. Therefore, the question that an F.I.R. Can or cannot be quashed in exercise of inherent jurisdiction under section 561-A, Cr.P.C. Did not arise in these cases. So far as the last-mentioned case of Muhammad Aslam is concerned, it is also distinguishable because in this case quashment of the F.I.R. And the proceedings were sought when the criminal proceedings were already pending before the Court after completion of the investigation by the police. The precedent cases do .Not discuss that an F.I.R. Can be quashed in a petition under section 561-A, Cr.P.C. When the proceedings are not pending before the Court. Learned Assistant Advocate-General relied on the case of Khawaja Anwar Hassan etc. v. Circle Inspector, Anti-Corruption, etc. NLR 1992 Crl.
434. This case is also not relevant because it was a writ petition filed under Article 199 of the Constitution, seeking quashment of the F.I.R. A learned Division Bench of this Court refused to quash the F.I.R. On the ground that in exercise of its Constitutional jurisdiction an F.I.R. Cannot be quashed when it discloses commission of a cognizable offence.
5. Learned counsel for the petitioner, by making reference to the text of section 561-A, Cr.P.C.
Submitted that this Court is not denuded to quash the F.I.R. With a view to secure the ends of justice. He elaborated his submission by adding that the words "or otherwise to secure the ends of justice" occurring in section 561-A empower the High Court to make appropriate order to quash an F.I.R. Even at the investigation stage, where it finds that circumstances of the case are such that the challan, if submitted in Court for trial, will result in abuse of the process of Court. In order to appreciate the contention of the learned counsel, it will be fruitful to examine the provisions contained in section 561-A, Cr.P.C. It is reproduced below:-- "561-A.--- Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of process of any Court or otherwise to secure the ends of justice."
' The scope of inherent powers of the High Court under section 561-A, Cr.P.C. Came up for examination before the Privy Council in Emperor v. Khawaja Nazir Ahmad AIR 1945 PC 18. Their Lordships held as under:- "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 are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is 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, Criminal Procedure Code to give directions 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."
' The august Supreme Court of Pakistan in Ghulam Muhammad v. Muzammal Khan and 4 others PLD 1967 SC 317 made the following observations:-- "The inherent jurisdiction given by section 561-A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself."
' In the case of Taj Din and others v. Sardar Vakil Khan and 2 others 1973 PCr.LJ 629 Javid Iqbal, J., as his Lordships then was, found that powers of the High Court under section 561-A, Cr.P.C. Do not extend to interfere with the police investigation into criminal cases. Mazharul Haq, J. In Abdul Majeed and 2 others v. The State and another PLD 1986 Lah. 293 held that an accused person cannot invoke the provisions of section 561-A, Cr.P.C. For quashment of proceedings in a case which is under investigation by the police.
6. It would thus be seen that the inherent powers under section 561-A, Cr.P.C. Cannot be exercised when the matter is not pending before any Court A and the words "or otherwise to secure the ends of justice" are relatable to the exercise of jurisdiction when the matter is pending before the Court, and not at the stage when the matter is still under investigation by the police. It is to be noted that the inherent powers cannot be exercised to undo other provisions of the Criminal Procedure Code.
It is the duty of the police to investigate a cognizable offence under section 156 of the Code. This statutory power of the 0, police cannot be interfered with by invoking the inherent powers which are meant to be used to prevent the abuse of the process of the Court. The inherent jurisdiction of the High Court under section 561-A, Cr.P.C. Cannot be exercised to obstruct or divert the ordinary course of criminal procedure. Accordingly, I feel no hesitation in repelling the contention of the learned counsel for the petitioner that powers under section 561-A, Cr.P.C. Can be exercised to quash an F.I.R. And the proceedings resulting therefrom before submission of challan in a Court for trial.
7. The proposition that inherent powers of the High Court under section 561-A, Cr.P.C. Cannot be invoked for quashment of the F.I.R. Came up for decision before the Honourable Supreme Court of Pakistan in the following two cases:--
(1) Shahnaz Begum v. The Honourable Judges of the High Court of Sindh & Balochistan and another PLD 1971 SC 677, and
(2) Sher Khan and others v. The State 1968 SCMR 62. In the case of Shahnaz Begum, it was held as under:-- "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."
8. The case of Sher Khan is relatable to the legal proposition which is directly under consideration here. The facts of the precedent case are that the High Court refused to quash the F.I.R. By invoking section 561-A, Cr.P.C. Petition for leave to appeal against the order of the High Court was dismissed by the Supreme Court by taking the view that the order of the High Court was "plainly correct".
9. Provisions of Article 199 of the 1973 Constitution are identical in language and spirit with those of Article 98 of the erstwhile Constitution of 1962. Therefore, keeping in view the principles laid down in the case of Shahnaz Begum, only a petition invoking powers under Article 199 of the Constitution can be filed to seek quashment of an F.I.R. At the investigation stage, on grounds of mala fide or want of jurisdiction in the investigating agency. Such a relief cannot be claimed or granted in the exercise of inherent jurisdiction of this Colid under section 561-A, Cr.P.C.
' For what has been discussed above, this petition is dismissed in limine, being incompetent. The petitioner, if so advised, may, however, file a petitioner under Article 199 of the Constitution for quashment of the F.I.R. If such a petition is filed, the same shall be heard and decided on its own merits.