2019 PLP 2593 (YLR)

ABDUL MAALIK GADDI, J:--Through this constitutional petition, the petitioners have prayed the following relief(s):- (a) That, this Honourable Court may kindly be pleased to quash the impugned FIR bearing Crime No.88/2017 of Police Station Tando Ghulam Ali under Sections 506(2), 147, 148, 149, 431, 427, 337-H(2) and 504, P.P.C. (b) That, this Honourable Court may kindly be pleased to pass ad-interim order, thereby the opera-tion of impugned FIR No.83/ 2017 under Sections 506(2), 147, 148, 149, 431, 427, 337-H(2) and 504, P.P.C. of Police Station Tando Ghulam Ali may be suspended and the respondent No.2 may be directed not to proceed further in the above FIR. (c) That, this Honourable Court may kindly be pleased to direct the respondent No.2 to provide legal protection to the petitioners and their family members and to insure the protection of life, liberty, properties and prestige of petitioners without fail, which is the fundamental right of the petitioner protected by the Constitution of Pakistan. (d) Any other relief deemed fit and proper be granted in the favour of above petitioners.

2. It is argued by the learned Counsel for the petitioners that the respondent No.3 is big zamindar of the area, who belongs to the influential political figure of District Badin, known as Mirza Group, having relationship with them, therefore, the Police of District Badin has registered a false case against the petitioners being Crime No.88 of 2017 at Police Station Tando Ghulam Ali for offences under Sections 506(2), 147, 148, 149, 431, 427, 337-H(2) and 504, P.P.C. He further argued that there is land dispute in between the petitioners and respondent No.3 over a landed property and in this regard the parties have longstanding enmity, therefore, false implication of the petitioners in the said crime cannot be ruled out. The learned Counsel for the petitioners, however, reiterated the facts and grounds as urged in the memo of this petition and has prayed that the impugned FIR may be quashed.

3. Learned A.A.G as well D.P.G assisted by learned Counsel for respondent No.3 have seriously opposed this petition by arguing that since the investigation is on way and serious disputed questions of the facts and law are also involved in this petition, therefore, at this stage this petition is not maintainable and the same may be dismissed.

4. We have heard the learned Counsel for the parties and perused the material available on the record with their able assistance.

5. In the present case, FIR has already been registered against the petitioners and investigation is in progress. At this stage, the case of the petitioners cannot be considered under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with Section 561-A, Cr.P.C. 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 petitioners 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 as under:- "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 491, Cr.P.C. 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."

6. Moreover, the Honourable Supreme Court of Pakistan in the case titled Nasreen Bibi v. 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 Pakhtunkhwa to the effect that the impugned judgment passed by a learned Judge-in-Chamber of the Peshawar High Court, Abbotabad 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.P.C. 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 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 Balochistan 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, Abbotabad Bench on 27.08.2013 is set-aside.

7. During the course of the arguments, we have specifically asked a question from the learned Counsel for the petitioners that when the matter is under investigation how this constitutional petition is maintainable by seeking the relief(s) as claimed, to which he could not satisfactorily reply. Keeping in view the above stated legal and factual points, we are of the considered opinion that the petitioners have adequate and alternative remedy available to them under the law, thus, it would be appropriate that the petitioners should agitate all these legal and factual points before the trial Court, hence, this petition is not maintainable and the same is dismissed. These are the reasons for our short order announced in open Court today in the earlier part of the day, whereby this petition was dismissed. SA/G-13/Sindh Petition dismissed.