Dr. Jamil Anwar Vs The Govt of KP Through Chief Secretary, KP Peshawar etc.

JUDGUEI|T SHEET

IN THE PESHAUTAR HIGH COURT,

BANI|U BEITCH

(Judicial Depaftnen$

W.P No.509- B,12024

Dr. Jamil Anwar.

Vs The Provincial Government of Khyber Pakhtunkhwa through chief Secretary, Khyber Pakhtunkhwa, Peshawar etc.

JIJDGMENT

Date of hearing: 15 025

For petitioner: Mr. Khush Amir Khan Khattak, Advocate,

For State: Mr. Muhammad Asghar Khan Ahmadzai,Addl: A.G for the State along with Kamran Khan DPP.

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ABDUL YAZ. J.-

1.Complainant Shahnaz Ali IHC/ACE, Karak submitted on the complaint against the petitioner that he allegedly in the year 2020 n,orde illegal appointments, initiated open inquiry vide letter dated 22.06.2021 and after obtaining the pertinent record of appoinffnents, recorded statements of numerous persons including the petitioner. Resultantly, it was found that on 19.09.2020 65 vacancies of Class-IV, 0l driver, and 0l electrician were appointed violating the policy, rules, and regulations while deprived the legible candidates. The illegally appointed officials received an amount of

Rs.471086696/- till June, 2023, cusing a huge loss to the govemment exchequer. Consequenfly, the above led to the registration of the FIR # 02, dahd 06.07.2023, r.r/ss 40914681471 P.P.CI 5(2) PC Act Police Station, AC, Karak, against the accused. Now, the petitioner seeks its quashment by way of the instant petition under Article 199 of the Constitution.

2.We have heard the arguments of learned counsel for the petitioner and learned AAG for the State and scanned the record.

3.The main contention of the learned counsel for the petitioner is that the petitioner is innocent and has been falsely charged in the instant case. The leamed counsel termed the story narrated in the FIR as the result of mala fide and ulterior motives.

4.Undoubtedly, the criminal cases are decided on the basis of material collected by the investigating officer during the course of investigation presented as evidence at the trial. In instant case, bare perusal of the contents of F.I.R lodged by the respondents, disclose commission of cognizable offence. The same prompted the local police to register the F.LR in question. This court under its constitutional jurisdiction has no power

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to evaluate the material collected during the investigation. Hence, this Court would refrain from giving any finding on the merits of the case, lest it may prejudice the case ofeither party. The legal and factual issues raised in the present petition can be taken by the petitioner in the first instance before the Investigating Officer, and then, before the trial Court.

5.Considering these facts and circumstances, the FIR in question couldn't be considered a result of malafide and ulterior motives. This Court, in its constitutional jurisdiction, cannot probe deeply into the merits of the case to outrightly conclude that the petitioner had no connection with aforesaid matter. Such a fact can only be ,{ seen after the prosecution has been given the opportunity to produce evidence and the defence has had the chance to cross-examine the witnesses. It is only after recording pro and contra evidence that a court seized ofthe matter would be able to render proper findings on the merits.

Significantly, the law regarding the jurisdiction of this Court under Article 199 of the Constitution in matters involving disputed questions offact is quite clear. It has been held firequenfly that the High Court cannot act as an investigator, nor can it control the investigation or any proceedings pending before a competent Court of law. In

the case of Dr. Sikandar Ali Mohi-uddin vs. Station House Olficer and others [2021 SCMR 1486], it was held by the Apex Court that the higher courts of the country, while dealing with alike matter, had already given finding that if prima facie an offence has been committed, ordinary course of trial before the Court should not be allowed to be defeated by resorting to constitutional jurisdiction of High Court. Reliance is placed on Rana Shahid Ahmad vs Tanveer Ahmed and others, [201I SCMR (Supreme Court of Pakistan) 19371, wherein it was discussed with reference to the cases of Emperor vs. Khwaja Nazir Ahmad IAIR 1915 PC 18J and Hazari Lalal vs Rameshwar Prasad, IAIR 1972 SC 181J. Similarly, in the case of Dn Ghulam Mustafo vs. The State and others 12008 SCMR (Sapreme Court of Pahistan) 76J, the Hon'ble Supreme Court has also held that our constitution is based on the doctrine of trichotomy of powers. The Courts have right to interpret the law and the High Court had no jurisdiction whatsoever to take the job of the investigating agency. While further dilating upon the subject, the Court also referred to the case of Shah Sadiq vs Muhammad Ashiq 12006 SCMR (Supreme Court of Pakistan) 276J,wherein it was observed at page 285:

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20.It is pertinent to mention here that established practice before the creation of country was that learned High Courts were very reluctant to quash the proceedings under constitutional jurisdiction. The obiect and reason behind this practice was that the High Courts had to quash the proceedings summarily which would create chaos due to the following reasons:

(i)AU the procedure and authorities prestibed under Cr.P.C. would become redundant.

(iD To interfere in the sphere allotted to the executive organ.

Gii There is very likelihood of injustice in a summary disposal.

Gi The cases are quashed at initial stages then it would create lm, and order situatton as the people may resort to taking revenge from the opposite party.

(v)Deviation fiom the past practice is always dangerous.

GD Superior Courts always keep judicial restraint in view of Article 4 of the Constitution read with Article 5(2) of the Constttution.

6.Similarly, in another pertinent case of Muhammad Mansho vs Station House Officer [PLD 2006 (Supreme Court) 998, it was concluded:

This Court has been repeatedly reminding all concerned that determination of the correctness or falsity of the allegations levelled against an accused person; the consequent determination of the guilt or innocence of such an accused person and the ultimate conclusion regarding his conviction or acquittal, was an obligation cast on the Court prescribed by the Code of Criminal Procedure for the purpose on the basis of legal evidence led at the trial after a proper opportunity to both the parties to plead their causes. It is a principle too well-

established by now that a resort to the provisions of section 561-A, Cr.P.C. or to the provisions of Article 199 of the Constitution seeking quashment of a criminal case was an extraordinary remedy which could be involced only in extraordinary circumstances and the said provisions could never be exploited os a substitute for the prescribed trial or to decide the question of guilt or innocence of an accused person on the bosis of material which was not admissible in terms of Qanun-e-Shahadat Order of 1984.

7.This Court of-course has the powers to quash FIR, but in exceptional circumstances, i.e., where the allegations made in the FIR, on the face of it, do not constitute a cognizable offence, or the allegations made in the FIR are false or its reflects that an attempt has been made to convert the civil liability into a criminal case, or where there is an express legal bar in any of the provisions of the Code or the concerned Act, under which a criminal proceeding is instituted. In this behalf, reliance can be placed on the case of Brig. (Retd.) Imtiaz Ahmad Vs. the Govt of Pakistan (1994 SCMR 2142), wherein the apex Court observed that:- "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 ownfunction, always of course, subject to the right of the court to intervene in an appropriate case. Control over the investigation exercised by the court was prejudicial to the accused and detrimental to the fairness of the procedure apart from being without jurisdiction. High court cannot assume the role of investigator.

This could obvtously not be done, for the authority to register and investigate a criminal case in lavt vests in the police andnot in Court".

8.In the light of what has been discussed above, we find no merit in the instant petition, which is hereby dismissed. However, the petitioner shall not be arrested, enabling him to approach the competent court for his ad- interim pre-a:rest bail within ten (10) days.

Announced 15.04.202s tt- I *Imranullah PS*

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JUDGE

-Sd- Judge

-Sd- Judge

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JTIDGE

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(D.B)

Hon'ble Mr. Justice MuhamnadTariq Afridi Hon'ble Mr. Justice Abdul Fayaz

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