2010 P Cr (PLP)

ATTAULLAH KHAN J.

Abdur Rasheed petitioner has filed this petition under section 561-A, Cr.P.C. for the quashment of F.I.R. No.48 dated 7-4-2010 under sections 324/34, P.P.C. of Police Station Ghazni Khel, District Lakki Marwat, inter alia, on the grounds that the instant case is counterblast to case F.I.R. No.40 dated 2-4-2010 under sections 302/34, P.P.C. of the same police station wherein Mujeeb-ur-Rahman, brother of the petitioner, was done to death by the son and grandson of the respondent Ghazi Marjan; that at the relevant time, the petitioner was away to Khankot Wana for hunting and remained there till 3-4-2010; that several persons have submitted affidavits regarding the said plea of alibi and that opinion of the Investigation Officer in this regard is also relevant.

2. I have perused the available record in the light of arguments of the learned counsel for the petitioner.

3. The record reveals that on 2-4-2010 F.I.R. No.40 was registered in which some persons were charged for the murder of Mujeeb-ur-Rahman. On the same day report was lodged in the Roznamcha No.23 and the matter was inquired into under section 157(i), Cr.P.C., whereafter the instant case F.I.R. No.48 was registered. The plea of alibi raised by the petitioner cannot be taken into consideration at this stage and it could be adjudicated upon during trial and so is the opinion of the Investigating Officer.

4. I have gone through the said opinion of the Investigating Officer recorded on 10-4-2010 which is to the effect that this case is cross-case to case F.I.R. No.

40. In my opinion, this cannot be made the reason for quashment of F.I.R., because it is mere opinion and is not binding on the Court. Otherwise, there are eye witnesses in case F.I.R. No. 38 who are required to be examined in the trial Court, whereafter final opinion may be formed about guilt or otherwise of the accused, which is the job of the trial Court and not of this Court. In this respect, I may refer to the case of Izzat Khan v. Muhammad Iqbal and another (2010 PCr.LJ 558), wherein it has been held that:-- "A person may approach this Court under section 561-A, Cr.P.C. when other remedy is not available. In this case, F.I.R. has been registered and the investigation is also complete as per version of the learned counsel for the petitioner at the Bar. The grounds agitated by the learned counsel are such which can be considered by the trial Court during or before trial". In the same authority, it has been further held that:-- "In view of the above principles and facts of the case, if the plea of the petitioner is considered, it would open a Pandora box. Every accused against whom F.I.R. is registered would take shelter of section 561-A Cr.P.C. and role of the trial Court would become redundant and consequently this Court would replace the trial Court. The petitioner has opportunity during trial to file an application under section 265-K Cr.P.C. for acquittal if evidence against him is not available. Allegations are there against him and he must face it and defend it before relevant forum".

5. In view of the above discussion and principles laid down by this Court in the case referred above, it is not a fit case for quashment and let both the cases be tried by the trial Court and decided on merits. This petition is accordingly dismissed. H.B.T./197/P Petition dismissed.