P L D 2015 Lahore 413 (PLP)

SIKANDAR ZULQARNAIN SALEEM, J.

After hearing the learned counsel for the petitioner notice is issued to the respondents. Learned AAG present in court accepts notice on behalf of official respondents and with the concurrence of both the learned counsel for the parties, this case is decided today as a Pakka case.

2. Muhammad Rehman petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for quashing of FIR No. 344/2014, dated 4-8-2014, registered under sections 302/148/149, P.P.C. read with Section 7 of Anti-Terrorism Act, 1997 at Police Station City District Vehari on the ground that Report registered at the instance of respondent No. 5 Ali Arsalan is second in series regarding which occurrence, case FIR No. 341 of 2014 was already registered at the instance of respondent No. 4 under sections 324/337-H2/148/149 of the Pakistan Penal Code, 1860 against the present petitioner and others.

3. Brief facts relevant for decision of instant writ petition are that initially a case FIR No. 341 dated 2-8-2014 under sections 324/337-H2/148/149, P.P.C. at Police Station City Vehari was lodged against the petitioner and others at the instance of respondent No.4 alleging therein that on the intervening night of 1/2-8-2014 Tasawar Hussain brother of the complainant and Azhar Hussain went to X-Block Peoples Colony for making movie on the marriage of Mohsin Raza. Zeeshan Haider, Rehman, Asghar, Wasim, Ghulam Bheek alias Abubakar Gujjar, Zahid, Luqman, Umer and 15 unknown persons who were armed with firearm weapons also came in the said ceremony and asked Azhar Hussain to make their movie also. Azhar Hussain replied that he would make their movie just after changing the video cassette, whereupon the accused persons flared up and tortured him brutally who sustained injuries on different parts of his body. On hue and cry the complainant along with his brother Tasawar Hussain, Muhammad Atif and Nazar Abbas attracted to the spot. The accused persons hit their Pajero straightly to Tasawar Hussain brother of the complainant who fell on the ground and within their views the accused persons passed over the said Pajero on the person of Tasawar Hussain, whereupon he became injured severely.

4. However, story of the second FIR bearing No. 344 dated 1-8-2014 registered at the instance of respondent No. 5 Ali Arsalan son of Tasawar Hussain deceased is that on 1-8-2014 Azhar Hussain uncle of the complainant who was a movie maker was hired by Mohsin Raza resident of X-Block Street No. 8 to make the video film of his marriage. Nazar Abbas his brother was also along with Azhar Hussain. At about 12.30 a.m. Nazar Abbas uncle of the complainant rushed towards the complainant and informed that Azhar Hussain was being tortured by the accused persons whereupon he rushed to rescue his life. On this information, the complainant along with his father Tasawar Hussain and Mazhar-ul-Islam alias Muhammad Atif ran towards the place of occurrence. As soon as they reached in Jernail Chowk they saw in the street light that a Dala Surf Pejaro type driven by Zahid and Ghulam Bhaik alias Abubakar and Rehman armed with automatic firearm weapons were making firing and creating terrorism and were forcing Azhar Hussain to run in front of above said vehicle. Tasawar Hussain father of the complainant came forward to rescue Azhar Hussain who set him aside. Ghulam Bheek alias Abu Bakar and Rehman (petitioner) raised a lalkara to kill him whereupon Zahid accused trampled Tasawar Hussain with above said vehicle while passing over him and then he again trampled the father of the complainant while reversing the above said vehicle. The accused persons escaped from the place of occurrence while making aerial firing. The complainant along with Amjad Javed and Muhammad Atif real uncle of complainant attended the injured and took him to DHQ Hospital Vehari. From where the injured was referred to the Nishtar Hospital, Multan after providing first aid treatment to him. The injured succumbed to the injuries yesterday at 7.30 p.m. The complainant along with witnesses remained busy to rescue the injured whereupon they could not get registered the case. Meanwhile, the accused persons manipulated the medical from the DHQ Hospital and registered a pro forma FIR of their own choice in connivance with the SHO, which was in fact was not registered by the uncle of the complainant rather he was busy with the injured at the Nishtar Hospital, Multan. The motive behind the occurrence as alleged in the FIR was stated to be that the accused persons had brought a dancing girl on the marriage ceremony and they were enjoying nude dance and asked the uncle of the complainant namely Azhar Hussain to make their video film continuously but on discontinuation of DVD they flared up and started for torturing him and also broke the camera and when Azhar Hussain on the intervention of Nazar Abbas rescued his life and ran from there, the accused persons have committed the above said occurrence.

5. Learned counsel for the petitioner contends that the story given in the second FIR by the complainant is an afterthought and does not appeal to the prudent mind as reasons advanced for registration of the second FIR are flimsy, fictitious and the second FIR stood registered just to bring more heinousness into the allegations and to fill up the lacunas in the prosecution's case. It is further submitted that in both the FIR, the place of occurrence, time of occurrence, articles used for the commission of alleged offence, set of the accused and the witnesses, the injured/deceased, initiation of the alleged occurrence are the same, hence, there was no need for registration of second FIR as registration of second FIR is nothing but abuse of process of law and continuation of the same would be nothing but the wastage of time. It is next contended that this Court has ample power to quash/cancel the FIR and redress the grievance of petitioner being custodian of fundamental rights of the citizens; hence, this writ petition be accepted and the FIR impugned in this petition is liable to be quashed.

6. It is resisted by the learned Assistant Advocate General with the arguments that writ petition seeking quashing of the FIR is not maintainable as number of efficacious remedies are available to the aggrieved petitioner; that the writ petition is lodged with mala fide intention; that petitioner has not been able to make out any factual or legal infirmity to seek quashing of FIR by invoking the constitutional jurisdiction of this Court, therefore, this petition is liable to be dismissed.

7. We have given patient hearing to learned counsel for the parties, learned A.A.-G. and gone through the record.

8. Question for consideration is whether in the given circumstances registration of second FIR is nullity in the eye of law and as such FIR is required to be quashed.

9. Text of section 154, Cr.P.C. suggests that if oral information regarding commission of a cognizable offence is communicated to an officer incharge of police station, it shall be reduced into writing by him or under his direction and be read over to the informant. No line of distinction and demarcation has been made in the said provision of law putting embargo to lay information before police even after the registration of first Report regarding the same occurrence.

10. Perusal of accusation contained in both the reports suggests that it is a case of two versions. Firstly, introduced by Amjad brother of the deceased being complainant of FIR No. 341 of 2014 is altogether different from the second version introduced by Ali Arsalan son of Tasawar Hussain deceased with reference to initiation of occurrence, motive of the occurrence, accused participated in the occurrence, the roles played by the accused during the alleged occurrence. In view of the matter, version introduced at the instance of respondent No. 5 Ali Arsalan, entirely gives a different version and the same is not an elaboration, explanation or amplification of first FIR, therefore, there is no legal bar for registration of second FIR.

11. Needless to say that for quashing of FIR following grounds are ordinarily considered:- (a) jurisdictional defect patent on the record; (b) patent violation of some provision of law; (c) allegations contained in the FIR does not constitute an offence. In the instant case, however, learned counsel for the petitioner has not been able to make out any of the above noted grounds to substantiate his plea for quashing of FIR. It is settled proposition of law that High Court has no jurisdiction to resolve the disputed question of fact in a constitutional jurisdiction. It has been squarely settled that quashing of the FIR by appreciating the arguments advanced by the learned counsel for the petitioner would amount to bypass the normal procedure of law prescribed by the Criminal Procedure Code 1898. Certainly, an accused cannot be allowed to avoid ordinary course of trial before the Court of competent jurisdiction, if prima facie the offence is made out against him, by resorting to constitutional Jurisdiction of High Court. Quashing of FIR during the investigation amounts to throttling the investigation process, which is not permissible in law. By now, it is settled too; that ordinary course of trial before the courts should not be allowed to be deflected by resorting to constitutional jurisdiction of High Court, if prima facie an offence has been committed. By allowing the constitutional petition it would be erred in law to all the procedures prescribed under Code of Criminal Procedure, 1898 which would become redundant. Quashing the proceedings summarily would create chaos due to following:-- (i) To interfere in sphere allotted to the executive organ. (ii) There is likelihood of injustice in summary disposal. (iii) The cases are quashed at initial stages then it would create law and order situation as the people may resort to taking revenge from the opposite party. The conduct and manner of investigation normally is scrutinized under the constitutional jurisdiction which might amount to interfere in police investigation as the same could not be substituted by the Court. To quash the FIR on the ground that there are two FIRs regarding the same occurrence and case is false would be to act on treacherous grounds and would tantamount to an uncalled for interference by the Court with the duties of the police. Even otherwise, accused have following alternate remedies under the code of Criminal Procedure: (1) To prove their innocence they can appear before Investigating Officer. (2) Can approach the competent higher authorities of the investigating officer having power vide section 551-of Cr.P.C. (3) Investigating Officer has to submit case to the concerned Magistrate after completion of the investigation and in case of innocence of accused the Magistrate has power to discharge them under section 63 of the Cr.P.C. (4) The Magistrate even at the time of taking of cognizance, would refuse to take cognizance in case he finds the accused innocent. Under the orders of the concerned Magistrate, Rule 24.7 of Police Rules, 1934 makes a provision for cancellation of case during the course of investigation.

12. It is for the Investigating Officer to collect the evidence, connected with the case and if he finds that no offence is committed, he may submit a report under section 173, Cr.P.C. to the learned Ilaqa Magistrate if he finds otherwise, he has to submit report accordingly. The investigation of case is held with a view to ascertain whether or not an offence has been committed. In my humble view, it will tantamount to act against the spirit of the law, if the police is restrained from investigating the matter which is their statutory duty. It is always the duty of the investigating agency not only to investigate the matter in a manner to connect the accused with the commission of crime but also to save the innocent persons from the agony of endless investigation and trial.

13. It is a settled proposition of law that a High Court is duty bound to protect life, liberty, dignity and honour of every citizen of Pakistan as enunciated in the Constitution of Pakistan, 1973. Therefore, when the statute law is not sufficient to meet a situation, it must take extraordinary measures and provide protection to him. It must, therefore, extraordinary jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan come to the citizen as an aid or safeguard. Similarly, the inherent jurisdiction of the High Court under section 561-A, Cr.P.C. is neither alternative nor additional in its characteristics and is to be rarely invoked only in the interest of justice so as to redress of grievances for which no other procedure is available and the provision should not be used to circumvent the ordinary course of criminal procedure. In the case of Dr. Ghulam Mustafa v. The State and others (2008 SCMR 76), the Hon'ble apex Court has settled that the High Court has no jurisdiction to quash the FIR while exercising Constitutional power under Article 199 of the Constitution or under section 561-A, Cr.P.C. except in exceptional circumstances. Learned counsel for the petitioner has not been able to make out any exceptional ground for quashing of the FIR, therefore, petitioner has no case to invoke the constitutional jurisdiction of this Court. No material or substance is available on record on the basis whereof, FIR No. 344/2014, dated 4-8-2014, registered under sections 302/148/149, P.P.C. read with Section 7 of Anti-Terrorism Act, 1997 at Police Station City District Vehari be quashed; neither any convincing argument has been advanced nor is any legal aspect available to help the petitioner in this regard. It is neither the case of double jeopardy nor a case of double incrimination.

14. For what has been discussed above, we do not find any factual or legal infirmity in registration of the FIR. This petition having no merits is hereby dismissed. AG/M-370/L Petition dismissed.