ORDER IFTIKHAR HUSSAIN CHAUDHRY, J.- Th is is an Intra Court Appeal u/s 3 of Law Reforms Ordinance 1972 against the judgment dated 30.8.1999 passed by learned single H'. Such of this Court whereby the writ petition bearing No. 15869-99 filed by the petitioner against the SHO Police Station Kotwali District Faisalabad seeking quash ment of FIR No; 316 dated 1.10.1998 u/s 363 PPC for the removal of petitioner's children from the custody of their mother durin g the course of meeting in the office of learned Advocate for the responded- mother of the minors. It was argued that in relation to the removal of the I minors, the appellant being a father could not be sadled with any criminal liability so as to attract the penal provisions of Section 363 PPC. It was. Further argued before the learned single Judge that the matter was being compromised and the case was also pending before the learned Guardian Judge Faisalabad and fixed on 29.9.1999.
2. The reason for dismissal of the writ petition was that this Court was not expected to hold a parallel investigation as to what circumstances the minors were allegedly removed from the office of learned Advocate/complainant and it was observed that the appellant may, if so advised, approach the relevant police authorities in the first instance for the redress of his grievance. It was also directed that the investigating authorities shall conclude the investigation of the case as early as possible.
3. Learned counsel for the appellant challenged the order on the grounds that the authoritative pronouncement reported in 1968 P.Cr.L.J. 764 has not been appreciated by the learned single Judge. Learned counsel further submitted that the learned single Judge has fallen in error while ignoring the had fact that the parties before the Guardian Judge had consented the lawful course and the Guardian Judge was seized of the matter, therefore, from no stretch of imagination, the father could be allowed to be dragged by the police during the pendency of the investigation before a competent Court as the conflicting results of two forums can provide nothing but humiliation, multiplicity of litigation and blackmailing of citizen and that the principle laid down in the case of Muhammad Azam vs. Muhammad Iqbal (PLD 1984 SC 95) was applicable in this case.
4. We have given due consideration to the valuable arguments of the learned counsel for the appellant and have found no fault with the judgment of the learned single Judge. In the case of Gianchand. Vs. The State and another (1968 P.Cr.L.J. 764), the facts were that on a private- complaint to the respondent, charge u/s 350 PPC had been framed against the petitioner by the trial Magistrate and feeling aggrieved, the petitioner applied to the High Court u/s. 5612-A Cr.P.C, for quash ment of the charge on numerous grounds to the effect that the prosecution case against him was entirely false. The prayer was refused on the view that it was pre-mature at that stage to make on assessm ent of the merits in the prosecution case. Reliance was placed on more than one decision of Hon'ble Supreme Court that quash ment of proceedings at so early a stage gives an unfortunate impression of stifling of criminal prosecutions by mercies of an extraordinary power which is given for the dispensation of complete justice in the forums provided by law. The petitioner for leave to appeal was dismissed by the Hon'ble Supreme Court with the following observations:- "We have seen the statements of the witnesses so far examined in support of the complaint and find that if they are to be believed, the charge against the petitioner shall stand proved. However, no opinion could be expressed at this stage for determination of the guilt or innocence of the petitioner will eventually depend on the totality of the facts and circumstances revealed during the trial. Admittedly such a stage has not yet been reached. The application for quash&it of the proceedings in the Court of the trial Magistrate was thus rightly rejected by the High Court."
In the case of Yaqoob Khan vs. The State and 3 others (1971 P.Cr.L.J. 266) (Lahore), where investigation was ordered on report of Superdar alleging removal of standing crops by accused from disputed land entrusted to him. The Superdar, however, appointed by the Revenue Officer was not authorised to act under Punjab Tenancy Act and without any regular proceeding in this behalf.
The matter was still under consideration of Settlement Authorities and High Court having twice ordered for maintenance of status-quo in respect of accused-petitioner's possession and the crops grown by the accused themselves, were held, could not but belong to accused-growers and no question of commission of theft arose in such circumstances and the proceedings were quashed by the High Court being an abuse of process of Court. A plea was taken in that case by the respondents that the case has not yet been put in Court and the High Court observed that on the authority of The King Emperor vs. Khawaja Nazir Ahmad (217 Indian Cases 1) this Court had the power, in a suitable case, to quash the proceedings even at the investigation stage on the proceedings were quashed.
In-the case of Emperor Vs. Khawaja Nazir Ahmad (AIR 1945 Privy Council 18), their Lordships observed:- "Just as it is essential that every one 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 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 right by a exercise of the inherent jurisdiction of the Court.
The function 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 on function, always of course subject to the right of the Court to intervene in an appropriate case when moved under section 491 Criminal P.C. To give directions in the nature of Habeas Corpus."
It was further observed that in the case of a cognizable offence, the Court's function begin when a charge is preferred before it and not until then and, therefore, the High Court can interfere u/s 561- A Cr.P.C, only when a charge has been preferred and not before. As the police have under Sections 154 and 156 Cr.P.C, a statutory right to investigate a cognizable offence without requiring the sanction of the Court to quash the police investigation on the ground that it would be an abuse of the powers of the Court would be to act on treacherous grounds. No doubt if no cognizable offence is disclosed, and still more if no offence of any kind is disclosed the police would have no authority to undertake an investigation and if they do so, the High Court may interfere under Section 561-A.
In the case of Muhammad Azam Vs. Muhammad Iqbal and others (PLD 1984 SC 95), the Hon'ble Supreme Court observed as under:- "Question No. 4 is composite in the sense that it deals with the difficulties which a learned Judge holding a criminal trial under the offence of Zina Ordinance might have to face. In answer to this question, it may be straightway remarked that the defence of Nikah in a case of Zina whether liable as a Had or as Tazir in ordinary or zina-bil-jabr categories is of immense importance in so far as the trial of the offence and results thereof is concerned. It, however, does not mean that this defence would have in any way less effect on other cognate offences of kidnapping, abduction and sale for prostitution of females and similar other offences. Definition of zina in Section 4 itself visualizes the defence of a .Valid marriage. Similar is the position regarding definition of the aggravated offence of zina liable to Had. It visualizes a defence of marriage even when the accused suspects to be married to the other person involved in the zina. The provision regarding zian-bil-jabr and other offences in the Ordinance would have to be construed accordingly in so far as this defence is concerned. Thus, eye a plea of defence is raised before a trial Judge (conducting a trial under this law) regarding Nikah and it needs to be examined as a genuine plea for giving a finding of guilty or otherwise and the Court is informed as is visualized in situation No. (i) under Question No. 4 that the same issue is involved before Family Court (either between the same parties or those directly or indirectly concerned therein on account of the nature of the lis) the criminal Court would as held in Muhammad Akbar's case (PLD 1968 SC 281) and as resolved in the case of Noor Elahi, stay the proceedings in the criminal case. The case of Noor Elahi has already been commented upon. It involves the stay of the proceedings on a challan case regarding the same occurrence between the same private parties as were involved in a complaint case which it was held would have to be tried first; when the proceedings in the challan case would remain stayed. And the result of the complaint case would even if not the practically be reflected in what subsequently happens in the other case on the challan, submitted by the police. The case of Muhammad Akbar also highlights a similar practical controversy regarding possibility of a. Conflict of decision by two forums. Though the nature of the tis in both the trials involved in the case of Noor Elahi was of criminal nature that in the case of Muhammad Akbar is of dual character; samely criminal and civil in the two trial which were also before two different forums. In the discussion, it was assumed to start with, that whenever same question is being adjudicated upon between the same parties in criminal and civil forums, the criminal proceedings are not "normally postponed but this assumption as the entire discussion reveals would ordinarily apply if the proceedings are other than bona i.e and are pending or commenced in a civil forum when the same subject matter requires determination in criminal proceedings. This finds support from the following further observations and rule laid down in that case:- But where it is clear that the criminal liability is dependent upon the result of the civil litigation or is so intimately connected with it that there is a danger of grave injustice being done in the case if there being a conflict of decision between the Civil Court Qali the Criminal Court then in such even, it is equally clear that the Criminal Court has not only the right to but should also stay its hands until the civil litigation is disposed of for, it is not desirable that when the title to the property itself is in dispute, the Criminal Court should give a finding in respect of the same question.... In exercising this direction, the guiding principle should be to see as to whether the accused is likely to be prejudiced if the criminal proceedings is not stayed.
In that case, it was also held that" it cannot, therefore, be said ' that the subject matter of in the criminal decision is not dependent upon the decision in the civil litigation" and accordingly the stay of proceedings in the Criminal Court by the High Court in exercise of its power under Section 561-A Cr.P.C, was upheld by the Supreme Court. Thus question No. 4 (i) is answered in affirmative."
From the above discussion, one thing is clear that the criminal case is at the investigation stage and has not yet come before the competent Court. The learned single Judge has very correctly passed the order that the petitioner/appellant should place all his cards before the I.O. Where in case, the case is not cancelled and the matter goes for trial, he may move for staying the proceedings till the decision of the civil-1 matter and for the time being, the writ petition has got no merit. Resultantly the I.C. A is also dismissed in limine.