Muhammad Shafiq Vs State

PESHAWAR HIGH COURT, ABBOTTABAD BENCH.

FORM OF ORDER SHEET

Court of.............................................................. Case No...................................of......................... Date of Order of Order or other Proceedings with Signature of Judge (s) Proceedings

05.09.2017 WP No. 593-A/2017.

Present:- Syed Asif Shah, Advocate for petitioners.

ABDUL SHAKOOR, J.- Muhammad Shafique and others, petitioners, seek the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with section 561-A Cr.PC for quashment of FIR No.127 dated 26.03.2017 under Sections 498- B/342/365/506/109 PPC Police Station Oghi.

2.We have heard learned counsel for petitioners and perused the available record with his assistance.

3.In the present case FIR has already been registered against the petitioners and investigation is in progress. At this stage case

of the petitioners cannot be considered under Article 199 of the Constitution read with section 561-A Cr.PC. Moreover, this Court would refrain from rendering any finding on the merit of the case at this stage, which may prejudice the case of the petitioners in any manner whatsoever and considers that the legal and factual issues raised in the present petition can be taken by the petitioners in the first instance before the investigating officer and then even before the framing of charge by the trial Court, if at all challan is submitted against the petitioner and the learned trial Court has the power to discharge the petitioners. The parameters of Court’s jurisdiction were dilated upon as early as Khawaja Nazir Ahmed’s case AIR 1945 PC 18 wherein it was held;

“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 interfere in an appropriate

case when moved under Section 491Cr.PC to give direction in the nature of habeas corpus. In such a case as the present, however, the Courts function begins when a charge is preferred before it and not until then.”

4.Moreover, the august Supreme Court of Pakistan in case titled Nasreen Bibi Vs.

Farrukh Shahzad etc (Criminal Appeal No.280 of 2013) decided on 04.02.2014 while dilating upon similar question of law has upheld its earlier view which reads as under;

“During the hearing of this appeal a consensus has developed between the learned counsel for the appellant the learned counsel representing respondent No.1 and the learned Additional Advocate-General, Khyber Pakhutunkhwa to the effect that the impugned judgment passed by a learned Judge-in-Chamber of the Peshawar High Court, Abbottabad Bench is not sustainable in law because the criminal case in hand was still at its investigation stage when the said judgment was passed and at the investigation stage of a criminal case the provisions of Section 561-A Cr.PC do not stand attracted. This consensus of opinion between the learned counsel for the parties and the learned Law Officer finds support from the cases of Emperor V. Khwaja Nazir Ahmed (AIR (32) 1945 Privy Council 18), Shahnaz Begum V. The Hon’ble

Judges of the High Court of Sindh and Baluchistan and another (PLD 1971 SC 677) and Nazir Ahmed and others V. Muhammad Shafi and another (PLD 1980 SC 6). In this view of the legal position this appeal is allowed and the impugned judgment passed by the learned Judge-in-Chamber of the Peshawar High Court, Abbottabad Bench on 27.08.2013 is set aside.”

5.The petitioners have adequate alternative remedy available and thus, it would be appropriate that the petitioners should agitate all these legal and factual points before the trial Court.

6.Accordingly for the reasons stated hereinabove, the present petition is dismissed in limine.

Announced.

05.09.2017. JUDGE

Aftab/*

JUDGE