P L D 2014 Peshawar 231 (PLP)

MRS. IRSHAD QAISER, J.

Petitioner through the instant petition seeks quashment of the F.I.R. registered against him under section 363, P.P.C, vide F.I.R. No.728 dated 19-9-2012 in Police Station Hangu on the ground that the charge against him being tainted with malice and mala fide is false on the face of it. 2 Learned counsel appearing on behalf of the petitioner contended that in the absence of mens-rea or dishonest intention the F.I.R. cannot stand and is liable to be set aside.

3. As against that, the learned counsel appearing on behalf of the respondents contended that the controversy urged by the learned counsel for the petitioner being factual couldn't be inquired into by this Court in its writ jurisdiction. He next submitted that when the petitioner is having an adequate remedy by moving the trial Court under section 249-A or 265-K, Cr.P.C., this writ petition cannot be entertained.

4. We have gone through the available record and considered the submissions of the learned counsel for the parties.

5. The available record reveals that on the direction of the Additional Sessions Judge the F.I.R. has been registered against the petitioner which is still in the phase of investigation. When so, we do not think, it can be quashed at this stage in the exercise of the constitutional jurisdiction of this Court. In the cases of Shehnaz Begum v. The honourable Judges of the High Court of Sindh and Balochistan and another PLD 1973 SC 677, Brig: Imtiaz Ahmad v. Government of Pakistan through Secretary Interior Division and 2 others 1994 SCMR 2142, Muhammad Latif, A.S.I. Police Station Sadar, Sheikhupura v. Sharifan Bibi and another 1998 SCMR 666 and Anwar Ahmad Khan v. The State 1996 SCMR 24 it has been consistently held by the hon'ble Supreme Court that the High Court has no jurisdiction to intervene with any criminal case when it is in the phase of investigation.

6. The fact that the respondent is the real mother of the minor aged about four years as she has not yet been divorced by her husband and in view of the age of the minor, she is also entitled to her custody. Even otherwise, this Court being already overcrowded with original appellate and revisional work cannot afford to encourage bypassing of the forums available at the lower rungs of the forums below, that too, when the petitioner has to join the investigation and to prove his innocence by producing sufficient material and if he is succeeded he can be discharged under section 169 of the Cr.P.C. Above all else, he can move the Court of competent jurisdiction under section 249-A or 265-K of the Cr.P.C., which besides being alternate, is by all means an adequate remedy in the circumstances of the case. We, therefore, do not feel persuaded to grant the relief asked for, when the case is still in the phase of investigation. However, the Investigating Officer is directed to be more alert, vigilant, prompt and dutiful. With these observations, this petition is hereby dismissed. MWA/446/P Petition dismissed.