' This is an appeal filed against an order dated 9-10-1996 passed by a learned Single Judge in Writ Petition No,6144/Q of 1996. Having heard the learned counsel for the appellant, we decided to consider the question in some depth and consequently issued notice to the State which notice was accepted by Mr. M.Nasim Kashmiri, the learned Addl. A.-G. Who had entered appearance on call.
Both the learned counsel have no objection to the final hearing of this appeal today as a notice case.
2. Writ Petition No,6144/Q of 1996 had been filed in this Court seeking a declaration that F.I.R. No,303 dated 5-9-1996 registered at Police Station, City, Kabirwala for the alleged commission of offences punishable under sections 324/353 and 186 of the P.P.C. And also for the alleged commission of offences punishable under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order 4 of 1979, be declared as an F.I.R. Having been recorded without lawful authority with a consequential relief that the same be quashed. The learned counsel for the appellant explains the involvement of the petitioner- appellant in at least eighteen cases, starting from the year 1987 to the year 1996 which had been noticed in the Order impugned before us, by submitting that these cases registered against the petitioner were the result of malice entertained by all the different police officers who had remained posted in the concerned police stations for the nine years in question. Adds that the allegations levelled through the F.I.R. In question were false; that the petitioner was a crippled person who could barely walk and that also with the assistance of crutches; that the provisions of Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order 4 of 1979 were not attracted in the present case and that likewise, the provisions of section 324 of the P.P.C. Were not made out from the allegations levelled through the F.I.R. In question. The learned counsel further argued that the claim of the complainant police officer with respect to the commission of offences punishable under sections 186 and 353 of the P.P.C. In the occurrence in question was also a fabrication and was thus a false claim. He, consequently prayed that the F.I.R. In question be quashed.
3. According to the said F.I.R. Recorded on the statement of one Muhammad Ashraf, S.I./S.H.O. Of P.S. City Kabirwala, it had been alleged that during the course of investigation of a case bearing F.I.R.
No,301 of 1996 of P.S. City Kabirwala which stood registered for the alleged commission of offence punishable under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order 4 of 1979, Aslam Hayat accused of the said case had disclosed that he had purchased the heroin in question from one Farrukh Salim who was even at that time present outside his bungalow selling the said intoxicant. Allegedly, it was on account of this information that the said complainant-S.H.O.
Constituted a police party and went to the,house of Farrukh Salim appellant where he was standing with two gunmen armed with Kalashnikovs with a bag in his hand selling packets of Heroin. It had been further alleged that on being challenged, Farrukh Salim appellant and his gunmen opened fire at the police party and in defence, at least eight members of this police party, had to fire a large number of shorts to save themselves from the assault allegedly launched by the appellant and his companions. It was further disclosed that in the process, the appellant and his companions managed to slip away but one person by the name of Ghulam Mustafa had been apprehended with some quantity of Heroin.
4. Having thus examined the allegations levelled through this F.I.R., we find that it could not be said that the facts disclosed did not constitute the commission of the offences alleged to have been committed during the occurrence in question.
5. The submission of the learned counsel that the petitioner was a crippled man who could not even walk or that the allegations contained in the F.I.R. In question were false, is a factual controversy which could not be determined unless an inquiry was held by us which might even involve the recording of statements of various persons and unless we had thus found out as to whether the facts as narrated in the F.I.R. Were false or whether the facts pleaded through the Constitutional petition in question were untrue. We are afraid, such an exercise, to determine disputed questions of fact, could not ordinarily be undertaken by this Court in the exercise of its Constitutional jurisdiction and the submissions of the learned counsel were thus misplaced.
6. The Constitutional petition filed by the appellant was liable to be dismissed also on the ground that the petitioner-appellant had a number of remedies available to him. To begin with, the remedy is available before the Investigating Officer where the appellant has a definite opportunity of pleading his innocence. In case the accused is not satisfied, either with the conduct of the investigation or with that of a particular Investigating Officer the accused person still has remedies by approaching the higher police officers in the same hierarchy who, by virtue of the provisions of section 551 of the Cr.P.C., have all the powers of officers-in-charge of police stations within their respective jurisdiction. The provisions of section 63 of the Cr.P.C. Authorise Magistrates to discharge the accused persons and in case, an accused person feels that he is innocent, then, besides an opportunity which he has before the Investigating Officer, he can even petition the concerned learned Magistrate for his discharge from the case in question, if the facts and circumstances so warrant. Rule 24.7 of the Police Rules of 1934 makes a provision for cancellation of cases during the course of investigations under the orders of the concerned Magistrates. 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. After the investigation is over, the matter reaches the authorised Magistrate under section 190 of the Cr.P.C. Where an accused person can once again plead his innocence and as a result of which, the learned Magistrate could refuse to take cognizance of the case thus providing relief to an accused person, if he deserved the same.
Thereafter, the accused person has a right to demand his discharge or acquittal, as the case may be, during the course of the judicial proceedings/trial being held on the allegations in question by praying firstly for not being charged and consequently being discharged and subsequently praying for acquittal either under section 249-A of the Cr.P.C. Or under section 265-K of the same Code, as the case may be. In the presence of such a large number of remedies available to an accused person, it would be difficult for us to hold that an accused person calling an F.I.R. In question by invoking the jurisdiction conferred on this Court under Article 199 of the Constitution, would be an aggrieved person without any adequate or alternative remedy being available to him.
7. In view of what has been noticed above, we find no merit in this appeal which is accordingly dismissed.