2021 LHC 30
No doubt, High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and section 561-A of Criminal Procedure Code has the authority to quash an FIR but this jurisdiction is required to be exercised only in exceptional and rare cases. The power of quashing an FIR and criminal proceeding should be exercised sparingly by the courts and the same has to be done with circumspection. The exercise of the said jurisdiction in routine will not only affect the due process of law but also result in devastating the exercise carried out by the Investigating Agency.
2021 LHC 30Writ Petition. No.1655/ Q/ of 2020Doctor Manzoor Hussain Malik Vs. The State and anotherJUDGMENT SHEETIN THE LAHORE HIGH COURT RAWALPINDI BENCH, RAWALPINDI. JUDICIAL DEPARTMENTWrit Petition. No.1655/ Q/ of 2020Doctor Manzoor Hussain Malik Vs. The State and another.Date of hearing 13.01.2021Petitioner represented by: Mr. Mubaras Khan Alizai, Advocate.Respondents by: Mr. Khaqan Meer, Assistant Attorney General for Pakistan with Imran Ahmed, Director Legal and Muhammad Tariq Assistant Director Legal, Punjab Human Organ Transplantation Authority (PHOTA).
J U D G M E N T
SADIQ MAHMUD KHURRAM, J. Through this petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner namely Doctor Manzoor Hussain Malik seeks quashing of the FIR No.37 of 2020, dated 12.08.2020, registered at Police Station FIA Anti-Corruption Circle, Islamabad in respect of offences under sections 9, 10 and 11 of the Transplantation of Human Organs and Tissues Act, 2010 as amended by the Punjab Transplantation of Human Organs and Tissues (Amendment) Act 2012 and under section 109 PPC.
2. Precisely, facts necessary for disposal of instant petition are that the allegation as against the petitioner, namely Doctor Manzoor Hussain Malik is that the petitioner was rendering his services for the purposes of transplantation of human kidneys without authority, performed the illegal transplants of kidneys of Hassan Ali son of Mst. Rehana Kanwal and Gohar Ali son of Saeed Rassan and after the operations, both the said patients died due to post kidney transplant rejection. Consequently, the FIR No.37 of 2020, dated 12.08.2020 was registered at Police Station FIA Anti-Corruption Circle, Islamabad in respect of offences under sections 9, 10 and 11 of the Transplantation of Human Organs and Tissues Act, 2010 as amended by the Punjab Transplantation of Human Organs and Tissues (Amendment) Act 2012 and under section 109 PPC. During the course of investigation, the witnesses including Mst. Rehana Kanwal (mother of Hassan Ali deceased), Akbar Ali son of Saeed Rassan (brother of Gohar Ali deceased) and Mehmood Ahmed got recorded their statements with regard to the allegations against the petitioner and documentary evidence was also collected.
3. The learned counsel for the petitioner contends that the FIR No.37 of 2020, dated 12.08.2020, registered at Police Station FIA Anti-Corruption Circle, Islamabad in respect of offences under sections 9, 10 and 11 of the Transplantation of Human Organs and Tissues Act, 2010 as amended by the Punjab Transplantation of Human Organs and Tissues (Amendment) Act 2012 and under section 109 PPC could not be registered as according to section 14(2) of the Transplantation of Human Organs and Tissues Act, 2010 as amended by the Punjab Transplantation of Human Organs and Tissues (Amendment) Act 2012 no court shall take cognizance of an offence under the Act except on a complaint in writing made by the Monitoring Authority or its Secretary or an aggrieved person who has given notice of not less than fifteen days, in such manner as may be prescribed, to the Monitoring Authority, of the alleged offence and of his intention to lodge a complaint. The learned counsel for the petitioner has further argued that the Federal Investigation Agency (FIA) had no authority to conduct the investigation of the case.
4. The learned Assistant Attorney General for Pakistan repelled the above submissions, inter alia stating that as the learned trial court has taken cognizance of the case therefore an efficacious, adequate, alternate remedy in terms of section 249-A, Code of Criminal Procedure, 1898 is available to the petitioner and this petition is therefore not maintainable.
5. I have heard the learned counsel for the petitioner, the learned Assistant Attorney General for Pakistan and have also gone through the record of this case with their able assistance.
6. This Court may observe that the learned counsel for the petitioner seems to have confused the expression "cognizance" appearing in section 14(2) of the Transplantation of Human Organs and Tissues Act, 2010 as amended by the Punjab Transplantation of Human Organs and Tissues (Amendment) Act 2012 with the expressions "cognizable" and "non-cognizable" finding mention in sections 154 to 157 of the Code of Criminal Procedure, 1898. Taking of cognizance of an offence by a court is a thing quite distinct from investigation of a reported offence by the police or any other investigation agency. The provisions of section 14(2) of the Transplantation of Human Organs and Tissues Act, 2010 as amended by the Punjab Transplantation of Human Organs and Tissues (Amendment) Act 2012 deal only with taking of cognizance of an offence by a court and the same do not place any embargo upon reporting such an alleged offence to the police authorities, registration of an F.I.R. in that regard or conducting of an investigation in respect of such an allegation. An analogy could be drawn to conclude that if the provisions of section 14(2) of the Transplantation of Human Organs and Tissues Act, 2010 as amended by the Punjab Transplantation of Human Organs and Tissues (Amendment) Act 2012 place a prohibition against taking of cognizance of an offence by a court except in the given manner then all prior steps taken before the stage of taking of cognizance by a court could be deemed to be permissible. Furthermore, section 14(4) of the Transplantation of Human Organs and Tissues Act, 2010 provides that the offences punishable under this Act shall be non-bailable. Reliance in this regard is placed on the case of “INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN and others v. Mian ASIM FAREED and others” (2006 S C M R 483) wherein the august Supreme Court of Pakistan has enunciated the following principle of law:-
“2. In the absence of any finding that the above mentioned offences mentioned in the F.I.R. were false and malicious and in the absence of a finding that if a particular forum or mode had been prescribed with respect to the taking of cognizance of an offence then the same also implied prohibition regarding the registration of an F.I.R., no such order could be passed nor the same could be approved. Needless to add that the registration of an F.I.R. and taking of cognizance of cases were two distinct and independent concepts under the criminal law; that if the A intention of the law-maker was to put any clog on the registration of an F.I.R. 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 F.I.Rs.”
Furthermore, with regard to the contention of the learned counsel for the petitioner that the Federal Investigation Agency (FIA) had no authority to conduct the investigation of the case, suffice is to observe that The Ministry Of Interior, Government of Pakistan issued a Statutory Notification(S.R.O.) No.353(1)/2017 on 31st of March,2017, making an amendment in the Schedule of Federal Investigation Agency Act, 1974 (VIII of 1975) and placing the Transplantation Human Organ and Tissue Act 2010 in the schedule of the Federal Investigation Agency Act, 1974 (VIII of 1975) . By virtue of section 3 of the Federal Investigation Agency Act, 1974 (VIII of 1975) the Federal Investigation Agency can validly inquire into and investigate the offences made punishable under the Transplantation Human Organ and Tissue Act 2010, including an attempt or conspiracy to commit, and abetment of any such offence.
7. No doubt, this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and section 561-A of Criminal Procedure Code has the authority to quash an FIR but this jurisdiction is required to be exercised only in exceptional and rare cases. The power of quashing an FIR and criminal proceeding should be exercised sparingly by the courts and the same has to be done with circumspection. The exercise of the said jurisdiction in routine will not only affect the due process of law but also result in devastating the exercise carried out by the Investigating Agency. As observed above, the case in hand is at its inception, the learned trial court has taken the cognizance of the same, and the prosecution has to prove its case by producing relevant and admissible evidence. If at any stage the petitioner is of the view that he is innocent, he has a remedy under sections 249-A of the Code of Criminal Procedure, 1898. Guidance in this respect is taken from the case of “Director-General, AntiCorruption Establishment, Lahore and others v. Muhammad Akram Khan and others” (PLD 2013 SC 401) wherein the august Supreme Court of Pakistan has enunciated the following principle of law:-
“The law is quite settled by now that after taking of cognizance of a case by a trial court the F.I.R. registered in that case cannot be quashed and the fate of the case and of the accused persons challaned therein is to be determined by the trial court itself. It goes without saying that if after taking of cognizance of a case by the trial court an accused person deems himself to be innocent and falsely implicated and he wishes to avoid the rigours of a trial then the law has provided him a remedy under sections 249-A/265-K, Cr.P.C. to seek his premature acquittal if the charge against him is groundless or there is no probability of his conviction.”
8. In the light of above discussion, the instant petition, being devoid of any merit is accordingly dismissed, however, the petitioner shall be at liberty to avail all the alternate remedies available to him under the law, and if any application under section 249-A of the Code of Criminal Procedure, 1898, is filed, the learned court concerned shall decide the same strictly on its own merits, in accordance with the law and without being influenced by the observations made hereinabove.
(SADIQ MAHMUD KHURRAM) JUDGE
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