-Quashing of FIR--Criminal reports in question are under investigation, any interference at this stage would mean preempting powers of investigating officers and trial courts and such a course of action has never been approved--

 PLJ 2021 Lahore 911

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), S. 561-A--Telegraph Act, 1885, S. 25-D--Quashing of FIR--Investigation and trial--Criminal reports in question are under investigation, any interference at this stage would mean preempting powers of investigating officers and trial courts and such a course of action has never been approved--Petition for quashing of FIR is dismissed.

                                                                                              [P. 915] E

PLD 2009 SC 102; 2008 SCMR 76; 2006 SCMR 276;
PLD 1998 Lah. 72 ref.

Constitution of Pakistan, 1973--

----Art. 199--Factual controversies or disputed questions--Remedy afforded by said article is primarily discretionary in nature, and that factual controversies or disputed questions requiring recording of evidence cannot be resolved in constitutional jurisdiction since the remedy afforded by said article is a summary remedy.

                                                                                              [P. 914] A

2011 SCMR 1023 ref.

Constitution of Pakistan, 1973--

----Art. 199--Recording of evidence--Questions that require recording of evidence and for resolution which an elaborate inquiry is required are ill suited for adjudication in constitutional jurisdiction.

                                                                                              [P. 914] B

1993 SCMR 618; 2001 SCMR 1493; 2011 SCMR 1990 ref.

Constitution of Pakistan, 1973--

----Art. 199--Writ jurisdiction--Writ jurisdiction can only be invoked as a last resort when all other remedies have already been exhausted or are not available--High court may not indulge in determination of questions arising under a statute for which particular statute itself provides a remedy.       [P. 914] C

2001 SCMR 1493; PLD 2008 SC 135 ref.

Constitution of Pakistan, 1973--

----Art. 199--Provision of said article cannot be invoked to defeat the provisions of a validly enacted statutory provision.                                                                                        [P. 914] D

2020 SCMR 260 ref.

Mian Shahzad Siraj, Advocate for Petitioner (in W.P. No. 31566-Q of 2021).

Mr. Imran Zahid Khan, Advocate for Petitioner (in W.P. No. 31733 of 2021).

Barrister Syed Ali Nouman, Assistant Advocate General Punjab for Respondents.

 PLJ 2021 Lahore 911
Present: Muhammad Shan Gul, J.
KHALID IMRAN--Petitioner
versus
STATION HOUSE OFFICER, POLICE STATION SUNDAR, LAHORE and 2 others--Respondents
W.P. No. 31566-Q of 2021, decided on 21.5.2021.

Order

Muhammad Shan Gul, J.--By way of this single Order, I intend to decide the instant writ petition as also Writ Petition No. 31733 of 2021 as the same question of law is involved in both these petitions.

2. Petitioner in W.P. No. 31566-Q of 2021 seeks quashing of FIR No. 53/2021 dated 10.01.2021 for an offence under Section 25-D Telegraph Act, 1885 registered at Police Station Sundar, Lahore.

3. Petitioner in W.P. No. 31733 of 2021 seeks quashing of FIR No. 191/2021 dated 10.04.2021 for offences under Sections 354, 506, 337-H(2) and 34, P.P.C. registered as Police Station, City Joharabad, District Khushab.

4. Learned counsel for the petitioner in W.P. No. 31733 of 2021 submits that a perusal of the FIR reveals that no offence is made out against the petitioner and requests this Court to quash the FIR.

5. Heard. Record perused.

6. In W.P. No. 31566-Q of 2021 FIR No. 53/2021 dated 10.01.2021 for offence under Section 25-D Telegraph Act, 1885 stands registered against the petitioner at Police Station Sundar, Lahore and specific allegations spelling out a cognizable offence have been raised in the application and from the contents thereof Section 25-D of the Telegraph Act, 1885 is (ceteris paribus i.e. other things being equal) indeed attracted. The counsel for the petitioner, therefore, when confronted with this fact has referred to the bail granting order saying that even the learned Additional Session Judge through his bail granting order has cast a shadow of doubt on the veracity of the FIR. This argument on the face of it is not only naïve but also misplaced. This Court is not bound by the orders passed by the subordinate Courts and, therefore, this argument does not allow the petitioner to make any headway. So much for the merits in this petition.

7. In W.P. No. 31733 of 2021 FIR No. 191/2021 dated 10.04.2021 for offences under Sections 354, 506, 337-H(2) and 34, P.P.C. stands registered against the petitioner at Police Station City Joharabad, District Khushab and specific allegations spelling out a cognizable offence have been raised in the application and from the contents thereof Sections 354, 506, 337-H(2) and 34, P.P.C. are, arguably, attracted.

8. More importantly the Constitutional remedy afforded by Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 is hedged and conditioned, both by way of constitutional prescription as also jurisprudentially, by riders and conditions. Commonly referred to as a sword in the hands of the citizens against executive excesses, Article 199 itself as also the jurisprudence developed on the basis thereof reveals that as against a sword, the jurisdiction contemplated in terms of Article 199 offers many shields as well in the form of conditions and riders. After a comprehensive analysis of the ambit, scope, purview and extent of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 transpires that the remedy afforded by the said Article is primarily discretionary in nature; and that factual controversies or disputed questions requiring recording of evidence cannot be resolved in constitutional jurisdiction since the remedy afforded by the said Article is a summary remedy ("Amir Jamal and others v. Malik Zahoor-ul-Haq and others" (2011 SCMR 1023) and questions that require recording of evidence and for the resolution of which an elaborate inquiry is required are ill suited for adjudication in constitutional jurisdiction ("Muhammad Younas Khan and 12 others v. Government of N.W.F.P. through Secretary, Forest and Agriculture, Peshawar and others" (1993 SCMR 618), "Mst. Kaniz Fatima through Legal Heirs v. Muhammad Salim and 27 others" (2001 SCMR 1493), "Fida Hussain and another v. Mst. Saiqa and others" (2011 SCMR 1990). Furthermore, these judgments unequivocally state that writ jurisdiction can only be invoked as a last resort when all other remedies have already been exhausted or are not available. That the High Court may not indulge in determination of questions arising under a statute for which the particular statute itself provides a remedy ("Mst. Kaniz Fatima through Legal Heirs v. Muhammad Salim and 27 others" (2001 SCMR 1493) and "Muslimabad Cooperative Housing Society Ltd. Through Secretary v. Mrs. Siddiqa Faiz and others" (PLD 2008 SC 135). Provisions of the said Article cannot be invoked to defeat the provisions of a validly enacted statutory provision ("President, All Pakistan Women Association, Peshawar Cantt. v. Muhammad Akbar Awan and others" (2020 SCMR 260). Likewise, adjudication in constitutional jurisdiction takes place on the basis of affidavits and counter-affidavits and no examination or cross-examination on the said affidavits is permissible in constitutional jurisdiction and, therefore, controversies that require resolution of disputed questions of fact cannot possibly be adjudicated upon in constitutional jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.

9. Besides the above, another reason for declining the request for quashing of an FIR is that this Court cannot indulge in a fact finding exercise. Needless to mention here that since the criminal reports in question are under investigation, any interference at this stage would mean preempting the powers of the Investigation Officers and the trial Courts and such a course of action has never been approved by the Hon'ble Supreme Court of Pakistan. Starting from "Emperor v. Khwaja Nazir Ahmad" (AIR (32) 1945 Privy Council 18) to "Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Baluchistan and another" (PLD 1971 SC 677), and even in the case of "Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others" (1994 SCMR 2142) the Hon'ble Supreme Court of Pakistan has deprecated the hampering and throttling of police investigation by the High Court in its Constitutional jurisdiction. Both writ petitions filed before this Court involve disputed questions of fact and are, therefore, ill-suited for adjudication in Constitutional jurisdiction.

10. Furthermore, and of the essence is the fact that a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is competent only if it is established that no adequate remedy is available to an aggrieved person who seeks this Courts' indulgence in constitutional jurisdiction. An accused person seeking quashing of an FIR has at least five remedies available before he can have resort to constitutional jurisdiction. In the first place, he can take his grievance before the Investigation Officer and in the event that he is not satisfied with the conduct of investigation by the Investigation Officer of the case he can approach the higher police hierarchy on the investigation side in terms of Section 551, Cr.P.C. An aggrieved person, thereafter, also has a remedy before a Magistrate in terms of Section 63 of the Cr.P.C. to seek his discharge from the case. Another remedy under Article 24.7 of the Punjab Police Rules, 1934 is also available to a person seeking quashing of FIR. Section 190 of the Cr.P.C. also affords a remedy in this regard and a Magistrate can refuse to take cognizance if no case is made out. Thereafter, another remedy in the form of Section 249-A, Cr.P.C. is also available to the petitioner in this respect. An enlightening judgment of this Court reported as "Qaisar Mahmood v. Muhammad Sham and another" (PLD 1998 Lahore 72) confirms what has been held above. After having narrated the remedies available to a person seeking quashing of an FIR before he can have resort to constitutional jurisdiction there is no gainsaying that the present petition cannot proceed. Even otherwise, the Hon'ble Supreme Court of Pakistan on numerous occasions has deprecated the quashing of an FIR by the High Court since the same amounts to interference in police investigation. The

Hon'ble Supreme Court of Pakistan in judgments reported as "Col. Shah Sadiq v. Muhammad Ashiq and others" (2006 SCMR 276), "Dr. Ghulam Mustafa v. The State and others" (2008 SCMR 76) and "Ajmeel Khan v. Abdur Rahim and others" (PLD 2009 SC 102) has viewed quashing of an FIR by the High Court as legal anathema.

11. Having considered the matter from all angles, this Court is of the considered opinion that the present petitions cannot be countenanced and are hereby dismissed.

12. The counsel for the petitioners, however, insist that the Investigation Officer of their cases be directed to earnestly investigate the matters in a fair, transparent and just manner so that the petitioners' rights contained in Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 are not compromised. This Court is confident that the Investigation Officers shall conduct themselves strictly in accordance with law and shall investigate the matters without fear or favour.

(K.Q.B.)