Rustam Khan Vs State

PESHAWAR HIGH COURT, ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

JUDGMENT SHEET

Writ Petition No.739 /2017

Date of hearing: ..............06.12.2017................... Petitioners....(Rustam Khan) .......... by, Mr. Abdur Rauf Khan Jadoon Advocate Respondents...(State etc) .........by M/S Yasir Zahoor Abbasi and Javed Tanoli Advocates

SYED MUHAMMAD ATTIQUE SHAH, J. This

Court intends to decide the instant writ petition and writ petition No. 1057 titled “Sherzada Khan VS State” arising out of common question of law involved therein.

2.The petitioner in the present writ petition has prayed that:

“It is, therefore, prayed that by accepting the petition, the impugned abovementioned FIR may graciously be set aside, struck down by declaring against the law quashed or any other remedy which this honourable court deems fit and proper may be passed in favour of the petitioner against the respondents.”

The petitioners in writ petition No. 1057 prayed.

“It is therefore, most humbly prayed

that on acceptance of instant writ petition,

this honourable court may graciously be

pleased to quash the FIR mentioned in the heading of the writ petition being illegal and unlawful and any other relief this

honourable court deems just and proper.”

2.Brief and essential facts of the present writ petitions are that the respondent No. 2 instituted a civil suit No. 193/1 of the year 2003 against the petitioners.

That during the evidence, Patwari Halqa produced before the Court Goshwara prepared on 12/05/2003.

Later, respondent No. 2 has submitted a complaint against the petitioners to Anti-Corruption Establishment, Haripur on 17/05/2016, wherein she alleged that the petitioners falsely and fraudulently prepared the said Goshwara, wherein FIR was registered under sections 419, 420, 468, 471, 477 of PPC r/w section 5(2) of P.C on 28/02/2017. The petitioners, after the registration of above referred FIR, approached the Court for bail before arrest, wherein they were admitted to ad-interim pre- arrest bail on 03/03/2017. Now the petitioners have approached this Court in the present writ petitions for quashment of above referred FIR.

3.Learned counsel for the petitioners argued that the registration of FIR is illegal, based on mala-fide, just to harass, humiliate and torture the petitioners. They

further argued that under section 195(c) Cr.P.C, only the concerned Court could ask for the registration of the said FIR against the petitioners. They vehemently urged that respondent No. 2 was not competent at all under the law to register the said FIR against the petitioners, thus the same is liable to be quashed on acceptance of the present writ petitions.

4.Learned A.A.G appearing on behalf of State, assisted by learned counsel for respondent No. 2 seriously controverted the arguments of the learned counsel for the petitioners and argued that the FIR and proceeding there-under could not be quashed by this Court in its jurisdiction under Article 199 of the Constitution and prayed for dismissal of the present writ petition.

5.Arguments heard and record of the writ petitions perused with the valuable assistance of the learned counsel for the parties.

6.Perusal of the record reveals that the respondent No. 2 submitted a complaint before the Circle Officer, Anti-Corruption, Haripur, wherein she contended that Liaqat Hayat, Rustam Khan sons of Ghulam Khan instituted a suit titled “Liaqat Hayat Khan etc VS Muhammad Afzal Khan etc” in the Court of learned Senior Civil Judge, Haripur, in which she was

impleaded as defendant No. 37. She further alleged that during the course of evidence, petitioner Shehzada Khan, Patwari Halqa, produced Goshwara prepared on 12/05/2003 in respect of property comprising of Khata Nos. 1028 to 707/997, which was wrong and against the record, due to which the said suit was decreed against her. Later, one Bilquees Bibi and Mst. Sadiq Sultan submitted an application for setting-aside the said decree and during the course of proceedings, Patwari Halqa produced another Goshwara prepared on 16/11/2015 before the Court from where the respondent No. 2 got the knowledge regarding the fraud committed by the petitioners. On the said complaint of the respondent No.

2, the present FIR was registered against the petitioners.

7.The main stress of the learned counsel for the petitioners was that the very registration of the impugned FIR was illegal as the respondent No. 2 was not competent under the law to get registered the said FIR, as under section 195(1) Cr.P.C, only the presiding officer of the concerned court was competent to get the said FIR registered against the petitioners. For the sake of convenience, provisions of section 195(1) Cr.P.C are reproduced below:

“195(1) No Court shall take cognizance:

(c)Prosecution for certain offences relating to documents given in evidence; of any offence described in section 463 or

punishable under section 471, section 475 or section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is sub-ordinate.

8.Bare reading of the afore mentioned provisions of section 195(1)(c) of Cr.P.C reveals that the same deals only with taking cognizance of an offence by the Court and it does not place any embargo upon reporting of alleged offence to the police for registration of FIR with regard to conducting of investigation in respect of such an allegation. The said provision, therefore, does not impose any prohibition on registration of any criminal case. Reliance is placed on “Industrial Development Bank of Pakistan and others Vs. Mian Asim Fareed and others” 2006 SCMR 483.

The relevant portion is reproduced below as ready reference:

“Needless to add that the registration of an FIR and taking of cognizance of cases were two distinct and independent concepts under the criminal law, that if the intention of the law-maker was to put any clog on the registration of an FIR then the Legislature would have said so specifically and that if the law put a condition only on the taking of cognizance then it can never be read to imply prohibition on registration of FIRs.”

9.Moreover, provisions of section 476 Cr.P.C provide specific procedure when dealing with the offences committed within the ambit of section 195 Cr.P.C. When sections 195 and 476 Cr.P.C are read together, there appears no bar, either on the registration of an FIR or carrying out of investigations and taking all steps prior to the stage when the court could take cognizance. Furthermore, august apex Court in case “Haji Sardar Khalid Saleem Vs. Muhammad Ashraf and others” 2006 SCMR 1192 has held that if, prima facie, an offence had been committed, the ordinary course of trial before the Court should not to be allowed to be deflected by resorting to the constitutional jurisdiction of High Court. This Court is of the view that the petitioners have got alternative remedies to raise objection at the time of framing of charge against them by the trial Court or at the time of final disposal of the

trial by the trial Court after recording the evidence. Even otherwise, petitioners could seek redressal of their grievances before the trial Court under Section 265-K or 249-A Cr.P.C. Reliance is also placed on “Dr. Ghulam Mustafa Vs. State” 2008 SCMR 76 and “Director- General Anti-Corruption Establishment, Lahore Vs.

Muhammad Akram Khan” PLD 2013 SC 401.

9.Thus, keeping in view the above stated facts, circumstances and discussion made thereupon, this Court reached at the conclusion that both the writ petitions being bereft of merits are liable for dismissal.

Hence, dismissed accordingly.

Announced.

Dt.06.12.2017.

\*Faisal Nayab/*

JUDGE

JUDGE

(DB)Hon’ble Mr. Justice Lal Jan Khattak and Hon’ble Mr. Justice Syed Muhammad Attique Shah