' The brief facts giving rise to this petition are that the petitioner filed a civil suit against the Province of Punjab and others for the issuance of a permanent injunction restraining the defendants from excavating the Khal from his land as mentioned in Para. No,2 of the plaint. On 7-5-1997, the Civil Court ordered the maintenance of status quo regarding the construction of new watercourse. The petitioner-plaintiff allegedly demolished the watercourse, which was restored on 30-4-1997, after 2 days of obtaining status quo order in his favour, which resulted in the registration of the F.I.R. No,121 of 1997 under section 379/430, P.P.C. On 19-6-1997 regarding the occurrence, dated 9-5-1997.
2. The learned counsel for the petitioner prayed for the quashment of the F.I.R. On the ground that the said F.I.R. Was registered due to mala fides after the issuance of temporary injunction and in fact no watercourse existed at the relevant time. The learned A.A.-G. Submitted that the petitioner had demolished the existing watercourse under the shield of the stay order and the case under section 430, P.P.C. Was rightly registered against him.
3. The question whether or not the petitioner committed any offence and whether or not the disputed Khal existed at the relevant time is a question of fact, which can only and only be determined during the investigation.
4. In the case of Fateh Ali v. Province of Balochistan through Secretary, Health and others 1997 SCM R 1687, the appex Court approved the findings of the High Court that in a case of serious factual controversy the discretionary Constitutional jurisdiction could be declined.
5. In the case of Ahmad Saeed v. The State and another 1996 SCM R 186 it was held as under:-- "We find that the investigation was not complete and no challan had been submitted in the Court when petition for quashment of the F.I.R. Was filed in the High Court. The High Court, under its inherent powers, may quash judicial proceedings, if it was of the view that the proceedings amount to an abuse of the process of Court. Since no proceedings were pending in the Court by the time the quashment petition was filed in the High Court, the question of preventing the abuse of process of any Court did not arise in this case.
' In the instant case neither any order was made by any Court nor any process was issued by any Court. So, the question of making such orders as may be necessary to give effect to any order under the Criminal Procedure Code or to prevent abuse of process of any Court does not arise. We are afraid that the High Court under section 561-A, Cr.P.C. Could not quash F.I.R. On the ground of mala fide or on the ground that F.I.R. Discloses civil liability. Since we have held that the High Court had no powers to quash the F.I.R. Under section 561-A, Cr.P.C., we need not examine correctness of the reasons given by it for quashing F.I.R."
6. A Full Bench of the Supreme Court as early as 1967 while disposing three appeals titled:--
(1) Ghulam Muhammad v. Muzammal Khan and 4 others Criminal Appeal No,29 of 1996, (2)
Ghulam Muhammad v. Muzammal Khan and 3 others Criminal Appeal No,30 of 1966 and (3)
Ghulam Muhammad v. Muzammal Khan and 5 others Criminal Appeal No,31 of 1966 PLD 1967 SC 317 thoroughly examined the inherent power of the High Court contained in section 561-A read with sections 435, 438 and 439, Cr.P.C. And while setting aside the High Court's order quashing proceedings under section 561-A, Cr.P.C. Observed as follows-- "It is, therefore, generally accepted that the inherent jurisdiction should not normally be invoked where another remedy is available.
' If, in fact, an offence had been committed justice required that it should be inquired into and tried.
If the respondents are not guilty they have a right to be declared as honourably acquitted by a competent Court. On the other hand, if the evidence against the respondents discloses a prima facie case then justice clearly requires that the trial should proceed according to law. The mere fact that a long period has expired since the initiation of proceedings is no ground for quashing the criminal proceedings as was pointed out in the case of N.S. Khawaja v. The State The High Court, as has repeatedly been pointed out in a number of decisions, should be extremely reluctant to interfere in a case where a competent Court has after examining the evidence adduced before it, come to the view that a prima facie case is disclosed and has framed the charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence. Has merely proceeded on an erroneous conception that in a case where a complaint has been filed the police has no jurisdiction to investigate into any other offence which comes to its notice in the course of investigation of the complaint, particularly, if the offence disclosed is of a non-cognizable nature. .... We can see no legal bar to the police submitting a challan in respect of offences other than those mentioned in the First Information Report, if the same should come to its notice during the course of investigation
7. In the case of Ch. Pervez Ellahi v. The Federation of Pakistan through Secretary, Ministry of Interior and others 1995 M LD 615 the grounds for quashment of a criminal case by the High Court in the exercise of its Constitutional jurisdiction are clearly enumerated as under:--
(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 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.
' In this petition none of the abovementioned ground exists.
8. The allegations in F.I.R. No,121 of 1997 registered at the instance of Sub-Divisionl Canal Officer under section 379/430, P.P.C. Against the petitioner-accused are that the watercourse was restored with the assistance of the Police, which the petitioner again demolished and committed theft of water and thus committed a cognizable offence. Obviously, it is question of fact which requires inquiry/investigation and the F.I.R. Cannot be quashed summarily. Even the allegations of mala fides in registration of the case cannot be properly and judiciously assessed at this stage as the investigation is yet to be made and the evidence is yet to be recorded. This view finds support from the decision in the case of Sheikh Rashid Ahmad v. Lutuf Ali Malik and another 1995 PCr.LJ 717.
9. A similar view was expressed by a Division Bench of this Court, of which I had the privilege of being a member, in case Muhammad Shabbir v. Muhammad Saleem Writ Petition No,456 of 1996.
The result of the above discussion is that ordinarily an F.I.R. Cannot be quashed either under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 or under section 561-A, Cr.P.C. Unless there are exceptional circumstances justifying such an action, which is a departure from the established rule that all matters be decided after due inquiry/investigation and affording opportunities to the parties to adduce their respective evidence. The writ petition is accordingly dismissed in limine.