' The relevant facts as embodied in the writ petition are that the petitioner hired some guards from the complainant Rs,16,000 per month vide written agreement, dated 29-9-1996. Subsequently with mutual consent the guards were struck off in April, 1997 by clearing their all dues. However, in January, 1998 two guards were again engaged till April, 1998 and thereafter, the guards were returned by making full payment as the petitioner was no longer in need of guards. After lapse of 8/9 months Col. Jameel Ahmad, proprietor of the security firm required the petitioner to pay an amount as salary of those guards who were not hired in violation of the agreement. The petitioner refused the illegal demand over which he started pressurizing the petitioner through police of Police Station Sarwar Road, Lahore Cantt. Thereafter. The petitioner filed Writ Petition No,26267 of 1998, in which a direction was issued by this Court not to cause illegal and unnecessary harassm ent to the petitioner. After coming to know about the filing of writ petition an F.I.R. Was lodged against the petitioner with the allegation that the petitioner stopped payment of dues w,e,f, April, 1998 and lifted guards from the site in July, 1998 without making payment. The petitioner through this Constitutional petition seeks declaration to the effect that F.I.R. No,164 of 1998, dated 22-12-1998 registered under section 406, P.P.C. At Police Station Sarwar Road, Lahore Cantt. May be declared to have been registered without lawful authority and of no legal effect.
2. S.H.O., Police Station Sarwar Road, Lahore was directed by this Court to appear along with relevant record of F.I.R. Muhammad Ashiq, S.I. Appeared along with relevant record of the case and in formed this Court that the investigation was being conducted by D.S.P., Defence Circle but the same could not be completed due to non-cooperation of the petitioner as he did not join the investigation. The Investigating Officer vide order, dated 3-3-1999 was directed to complete the investigation within ten, and was directed to submit report and parawise comments and appear before this Court along with relevant record. The petitioner was also directed to join the investigation.
3. D.S.P., Defence Circle, Lahore has submitted report and parawise comments. In reply to para. C it is mentioned that the record and evidence of witnesses proved that the money has been misappropriated. The D.S.P. States that during the investigation the .Petitioner has admitted payment of disputed amount. He has also shown an agreement, dated 23rd July, 1998 allegedly executed by the present petitioner, wherein it has been admitted that the petitioner will pay Rs,1,75,000 to the complainant.
4. The learned Additional Advocate-General has raised a preliminary objection about the maintainability of the present writ petition and contends that controversial questions of facts cannot be resolved in Constitutional jurisdiction. He further submitted that the investigation has been finalized, the petitioner has got alternate remedy and can approach the appropriate forum for redessal of his grievance.
5. On the other hand, the learned counsel appearing on behalf of petitioner has contended that the provision of section 406, P.P.0 is not attracted to the facts and circumstances of this case as there is no entrustment of the property and no proof on the record is available regarding creation of any trust. The learned counsel in support of his arguments has referred the cases reported in PLD 1994 Karachi 363, PLD 1993 Lahore 416 and 1969 PCr.LJ 1569 to contend that the allegations levelled against the petitioner, are fake and the dispute between the parties prima facie appears to be of civil nature for which proper forum was Civil Court.
6. I have heard the learned counsel for petitioner as well as the learned Additional Advocate- General at length and have also gone through the record. 'Iqrar Nama, dated 23-1-1998 allegedly executed by the petitioner reveals that the petitioner has admitted payment of certain amount during investigation conducted by D.S.P., Defence Circle, who also recorded the statement of one Mansoor Masih and Anwar, witnesses of the said Iqrar Nama and the conclusion drawn by the D.S.P.
Is that the amount retained as trust money, so there is breach of trust punishable under section 406, P.P.C. The Hon'ble Supreme Court in Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan (1994 SCMR 2142) has categorically held as under:-- "Just as it is essential that everyone accused of a crime should have the 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.
There is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without acquiring any authority from the Judicial Authorities and it would 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."
' It was further held:-- "In other words what the petitioner wanted the High Court to do was to 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."
' It was also held:--'
"We must hold, therefore, that the learned Judges in High Court were eminently justified in not assuming that role."
7. It is vehemently contended by the learned counsel for petitioner that if the contents of F.I.R. And Iqrar Nama are admitted as gospel truth even then no criminal case is made out against the petitioner. The question whether the petitioner committed breach of trust and fraudulently misappropriated the amount is a controversial question of fact, which cannot be resolved in Constitutional jurisdiction. A detailed inquiry is needed for determination of such-like controversies..
Reliance can be placed on the case Muhammad Khalid v. State (PLD 1997 SC 275). Even in the investigation the petitioner has got a right to produce his defence and if the case is found false the same can be cancelled by the authority concerned. After submission of the challan the remedy is available with the petitioner to file application under section 249-A or 265-K, Cr.P.C. As held in the above said case in the following words:-- "The High Court is ordinarily reluctant to quash the criminal proceeding under section 561-A, Cr.P.C., unless the Trial Court exercises its powers under section 249-A or 265-K, Cr.P.C., which are incidentally of the same nature and in a way akin to and co-related with quashing of proceedings as envisaged under section 561-A, Cr. P .0 . Without waiting for trial Court to pass order under sections 249-A and 265-K, Cr.P.C., if the facts of the case so warrant to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
' Against the order passed under section 249-A or section 265-K, Cr.P.C., the aggrieved party has got the remedy of filing Revision under sections 435 and 439, Cr.P.C. The Hon'ble Supreme Court in Brig. Imtiaz's case (supra) was of the view that the powers under Article 199 of the Constitution is power of judicial review and that power is a great weapon in the hand of Judges, but Judge must observe Constitutional limits set by the Parliamentary System on their exercise of this beneficial power, namely the separation of powers between the Parliament, the Executive and the Court. In Shaukat Dogar's case (PLD 1994 SC 281) almost the same view was taken.
7. In view of the above discussion, this petition in no meat and the same is dismissed with no order as to costs.