Ajmal & others Vs The State & others

PESHAWAR HIGH COURT, PESHAWAR

ORDER SHEET

Datc of Order Order or others Proceedlngs wlth Signature of Judge or Proceedlngs

L 2

18.07.2022 W.PN .2550-P12022 IR.

Present: I\dr. Faisal Nasir, Advocate, for the petitioners.

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FAZAL S a J. The instant writ petition has been filed by the petitioners under Article 199 of the Constitution of Islamic Republic of Pakistan , 1973 rlw Section 561-A Cr.P.C, wherein, they have prayed for quashment of FIR No.1078, dated 31.07 .2021, Under Sections 32411481149 PPC of Police Station Saddar, Mardan

2.It is contended that on 31.07 .202I respondent No.5 intimidated petitioners No.5 & 6 and upon resistance and heated debate, one Jan Said started firing, resulting injuries to Shakir s/o Nawaz Khan and the matter was reported vide

Mad No.25 at Poli ce Station Saddar, Mardan and thereafter respondent No.5 alongwith accomplices flee from the spot. In the meanwhile respondent No.5 reported above fake and fabricated case nominating petitioners No.l to 4 and reporting injury on his hand but in the final medical report the same was proved to be fbke, whereafter the respondent No.5 was charged for forgery and using fake documents as genuine. That this, being the factual position and legal aspect of the case, the illegal and unlawful case registered against the petitioners, being based on malafide and ulterior motive, is to be cancelled/quashed.

3.We have heard the learned counsel for the petitioners and after considering the FIR it is clear that all the petitioners are nominated in the case whereas accused Ajmal has been attributed the role of effective firing. The matter was investigated by the local police and during

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investigati otr, though the medical report was shown to be the result of forgery however on the same grounds the learned Judge, Civil Court/JM- VUIVIOD, Mardan has granted bail to the petitioners namely Arif, Tauheed and Jan Said. If at all the petitioners have been charged in a false case then they can seek their acquiual u/s 249-A or 265-K Cr.P.C., as the case may be, which is the appropriate remedy available to them and for which the trial Court can be approached. In the case of nState through Advocate General, a- ^[W.F.P ,Vs. Gulzar Muhommad and others"

(1998 SCMR 873) it was held that:- "7. The case-law surveyed would, therefore, clinch the matter. The trial Court can acquit the accused under sections 249-A and 265-K, Cn.P.C,, as the case may be, at any stage of the proceedings and in the circumstances of each case the oppropriate remedy for the accused appears to be to request the trial Court to consider their case under the provisions of law. The learned trial Coart should thereupon apply its mind to this aspect of the matter and in the first instance, before it proceeds any further with the proceedings, shall decide whether the accused are entitled to the acquittal in the terms aforesaid then they have the right to approoch the High Court for quashment of the Proceedings against them. Thts rule proceeds on prudence and cautiousness, Nonetheless; both the iurisdictions under

Y --Lt sections 249-A/265-K and 561-A Cn.P.C, are co-efrensive. In the instont case it would have been proper to approach the trisl Court in the tirst instance but there is nothing against the High Court for entertaintng, the appropriate case, on application under section 261-A, Cr,P.C directly.r,

4.It is to be mentioned that after registration of case, the local police u/s 156 Cr.p.C is empowered to investigate a cognizable offence and therefore no restriction can be laid to halt the process of investigation. In the case of "Ajmeel Khan .Vs. Abdur Rahim & others " reported in PLD 2009 Supreme Court 102, it has been held that:-

"6. Needless to emphosis, that functions of the judiciory and the police are complementary not overlopping and the combination of indtvidual liberty with a due obseryance of law and order is only to be obtoined by leaving each to exercise its own function, If a crimtnal liability is spelt out from facts and circumstances of a particular case, accused can be tried upon a criminal charge, Quashment of FIR during investigation tontamount to throttling the investigation which is not permissible in law. Howetter, FIR can be quashed by High Court in its writ jurisdiction when tts registration appears to be misuse of process of law or without any legal justilication. The police are under a statutory duty under section 15a of the Code of Criminal Procedure and have a statutory right under section 156 of the Code of Criminal Procedure to investigate o cognizable offence whenever o report ,J made to tt disclosing the commission of a cognizable offence. To quash the police investigation on the ground that the case is would be to act on treacherous

.\j ond woald tantamount to on uncolled for interference by the Court with the duties of the police,"

5.For these reasons, we find that there is no justified ground at this stage to allow this petition when legal remedy under Section 249-A or 265-K Cr.P.C. can be availed at an appropriate forum, hence, this petition, having no merits, is dismissed in limine.

Announced:

CHIEF CE

.a -.a

JUDGE

(D.B) (Hon'ble Mr. tusdce Qalser Rashld Xhan, Chlef fusdce and Hon'ble Mr.lusdce Fazal Subhan) (Mahmood Shah, SSS)