Naeem Khan Vs Banaras Khan etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, ABBOTTABAD BENq}I

FORM OF ORDER SHEET

Date of Order or other proceedings with signature of order or Judge(s).

proceedings

23.r1.2017 W.P.No.7 773-A/2O77.

Present'.- Syed Shah Faisal, Advocate for petitioner.

svED ARSHAD ALI. J._ Petitioner through the instant writ petition have approached this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayer:-

"lt is, therefore, most humbly prayed that on acceptance of instant writ petition, the impugned FIR No. 1022 dated 06.10.2017 under section 489-F PPC P.,S Cantt: Abbottabad may graciously be ordered to be quashed. Any other relief deemed fit and proper in the circumstances of the case. " 2 Brief but essential facts as narrated in the instant petition are that respondent No.1 submitted an application to the District Police Officer, Abbottabad, wherein he has alleged that Aftab P.S/1 Jusliccs Syed Muhammad Attiquc Shah and Sycd Arshad Ali

the present petitioner has given a cheque amounting to Rs.54,00,000/- for payment of loan, which was dishonoured by concemed bank due to insufficient balance in the account of petitioner and case FIR No.1022 dated 06.10.2017 under section 489-F PPC was registered at police station, Cantt:

Abbottabad.

3.Arguments heard and record.

4.Perusal of record of record reveals that respondent No.l has filed an application to the District Police Officer, Abbottabad for registration FIR against the present petitioner, which was marked to SHO for registration of case and under Section 154 of the Criminal Procedure Code, the Incharge of Police Station is bound to register FIR if the information received by him relates to commission of cognizable offence. The arguments of learned .counsel for the petitioner that the contents of FIR are fake and the matter relates to a transaction regarding the sale of some property, which did not materialize, therefore, the cheque in 4' question was never given regarding any outstanding liability, cannot be considered by the High Court Aftab P.S/* Justices Syed Muhammad Aftique Shah and Syed Arshad Ali

J

for quashing an FIR. However, after registration of the FIR, the Investigation Officer has the authority to determine the truthfulness or falsehood of the allegations levelled against the accused but the same is subject to affirmation of the competent Court. If the Investigation Officer comes to the conclusion that the allegations contained in the FIR are incorrect, he may under Section 63 Cr.P.C refer the matter to the Magistrate for discharge of the accused. The Police Officer has also the authority to release accused in terms of Section 169 Cr.P.C, if he comes to the conclusion that there is no

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sufficient evidence or reasonable ground of suspicion to justifz the forwarding of accused to the Magistrate, such Officer shall, if such person is in custody, release him on executing of bond with or without sureties and direct him to appear, if and when required before the Magistrate empowered to take cognizance of the offence. It is then the Magistrate to pass such order as deemed appropriate under Section 173 Cr.P.C for discharge 4; of such bond or otherwise he deems fit' 5 Nevertheless this process cannot be Aftab P.S/* Justices Sycd Muharnmad Attique Shah and Syed Arshad Ali

bypassed by filing constitutional petition for the quashment of FIR, as the investigation of the case is the domain of the Investigating Agency and interference in the same by a High Court has been deprecated by the august Supreme Court of Pakistan. ln "Col. Shah Sadi Ys. Muhammsd Ash and others" 20 SCMR 276 the august Supreme Court of Pakistan has held that:- "20. It is pertinent to mention here that established practice before the ueation of country v)as that learned High Courts were very reluctant to quash the proceedings under constitutional jurisdiction. The object 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)All the procedure and authorities presuibed under Cr.P.C. would become redundant.

(ii)To interfere in the sphere allotted to the executile organ.

(iii)There is every likelihood of injustice in a summary disposal.

(iv)The cases are quashed at initial stages then it would creale law and order situation as the people may resort to taking revenge ftom the opposite partY.

(v)Deviation from the past prqctice is always dangerous.

(vi)Superior Courts always keep judicial restraint in view of Article 4 of the Constitution read with Article 5(2) of the Constitution 4 Similarly, \n "Ha i Sardar Khal d Arshad Ali Justices Syed Muhammad Attique Shah and Syed Aftab P.S/*

Saleem Vs, Muhammad Ashraf and others" 2006 CMR 1192 the august Supreme Court of Pakistan held that:-

" Mere mentioning of section 489-F in the F.l.R. is no ground to quash the F.I.R. by the learned High Court while exercising power under Article 199 of the Constitution without adverting to the contents of the F.l.R._ and other offences mentioned therein. The respondent had alternative remedy to raise objection at the time offraming charge against him by the triql Court or al the time offinal disposal of the trial by the trial Court after recording the eyidence. Even otherwise, respondent has more than one alternative remedies before the trial Court under the Criminal Procedure Code i.e. Section 265-K or 249-A. This fact was also not considered by the learned High Court. In case the contents of the writ pelilion and the F. I . R. are put in juxtaposition then it brings the case of respondent No.l in the area of disputed question I of focl which cannot be decided by the learned High Court in constitutional jurisdiction which requires investigation and evidence of the parties to be recorded by lhe trial Court. Therefore, the learned High Court erred in law in accepting the constitutional petition by quashing the F.I.R. at the initial stage which 'was not approved by this Court in the following judgments:-- Ghulam Muhammad v. Muzamal Khan and 4 others PLD 1967 SC 317; Mohsin Ali and anothei v. The State 1972 SCMR 229: Abdul Rehman v. Muhammad Hayat Khan 1980 SCMR 3ll; Marghoob Alam and another v. Shams-ud- Din and others 1986 SCMR 303: Manzoor Hussain Shah v. The State 1986 SC 265; Sheikh Muhammad Yameen v. The State 197i SCMR 622 qnd Bashir Ahmad v. Zafar-ul-lslam PLD 2004 sc 298.

The said view has been reaffirmed in "Ghulam Musta fa Vs. The State" 2008 SCMR 75 /, and "Muhammad AIi Vs. Additional I. G.

Faisalabad" PLD 2014 S. c 753.

Afiab P.S/* Justices Syed Muhammad Attique Shah and Syed Arshad Ali

6 In view of the above, the instant writ petition is hereby dismissed in limine.

Announced, /4/L 23.17.2077. dlf,oa

JUDGE

Justices Syed Muhammad Anique Shah aod Syed Arshad Ali' Aftab P.S/*

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