2017 PLP 22 (YLRN)

CH. MUSHTAQ AHMAD, J.

This petition has been moved for quashment of FIR No.122 dated 26.03.2013 registered under sections 406/506(b), P.P.C., at Police Station Tulamba, District Khanewal.

2. It is case of the petitioner that he is innocent and was falsely involved in this case with mala fides and ulterior motive and that petitioner was not connected with the alleged offence of misappropriation and cheating, hence, the FIR was liable to be quashed. In support of his contention, learned counsel for the petitioner has placed reliance on "Ameerullah v. The State" (2003 YLR 2097), "Muhammad Ashraf Shahzad v. Station House Officer, and others." (2001 PCr.LJ 31), "Mst. Afshan Perveen v. SHO, Police Station Qutabpur Multan and 2 others" (2004 PCr.LJ 208) "Raja Haq Nawaz v. Muhammad Afzal and others" (1968 SCMR 1256), "State through Advocate-General, NWFP Peshawar and others. v. Gulzar Muhammad and others" (1998 SCMR 873), "State of Islamic Republic of Pakistan through Deputy Attorney General for Pakistan, Karachi and another v. Mukthar Ali Sh." (2004 Cr.LJ 115) and "Miraj Khan v. Gull Ahmed and 3 others" (2000 SCMR 122).

3. Petition has been opposed by learned AAG on the ground that investigation is yet in progress and the petitioner is nominated in the FIR with specific allegation of criminal breach of trust and chcating, hence, the FIR could not be quashed.

4. Heard. Perused.

5. Record in this case shows that in the FIR present petitioner Muhammad Mukhtiar is nominated as one of the accused who remained associated with his co-accused and misappropriated the amount received from the complainant. The report submitted by the investigating agency also reveals that co-accused of the petitioner applied for bail before the concerned court and the case was still under investigation. There is no cavil with the proposition that in appropriate cases, this Court has ample authority to quash proceedings in criminal cases but it is also well settled that Court cannot interfere in the process of investigation.

6. In the case law cited by learned counsel for the petitioner i.e. "State through Advocate-General, NWFP Peshawar and others. v. Gulzar Muhammad and others" (1998 SCMR 873), the apex Court laid down that the trial court can acquit the accused under sections 249-A, Cr.P.C. and 265-K, Cr.P.C., as the case may be, at any stage of the proceedings and in the circumstances of each case, the appropriate remedy for the accused appears to be to request the trial court to consider their case under the provisions of law. The trial court should thereupon apply its mind to this aspect of the matter and in the first instance before it proceeds further with the proceedings, shall decide whether the accused are entitled to be acquitted in terms of sections 249-A/265-K, Cr.P.C. If the accused are not held entitled to the acquittal, in the terms aforesaid then they have right to approach the High Court for quashment of the proceedings against them. In another case i.e. "Miraj Khan v. Gull Ahmed and 3 others" (2000 SCMR 122), the same proposition came up for consideration "whether High Court in exercise of jurisdiction under section 561-A, Cr.P.C., had authority to quash the proceedings in a criminal case?". It was held that main consideration to be kept in view would be whether the continuance of the proceedings before the trial forum would be futile exercise, wastage of time and abuse of process of Court or not

if on the basis of facts admitted and patent on record, no offence can be made out, then it would amount to abuse of process of law to allow prosecution to continue with the trial. In the cited case, it was case of the complainant that he had given the amount as Qarz-e-Hasna but in the FIR, the word "Amanat" was also added and on the basis of admitted facts, FIR was ordered to be quashed.

7. In the case in hand, investigation is in progress. Moreover, in the FIR, the allegation against the petitioners and others was that the accused had received the amount on the undertaking that they would keep it as trust and in case the original documents of transfer deed could not be handed over regarding the plot, the amount will be returned. On further inquiry, it was found that accused had committed fraud as no plot was available for transfer to the complainant and the accused deprived him of huge amount through misrepresentation and fraud. In another case titled "Ajmeel Khan v. Abdul Rahim and others" (PLD 2009 SC 102), the same proposition came up for consideration. In the said case, petitioner was involved in offence under section 489-F, P.P.C., in which the petitioner was arrested and subsequently enlarged on bail; then he filed writ petition in the High Court for quashment of FIR which was dismissed. The matter came up for hearing before the apex Court in a petition seeking leave to appeal. It was laid down in para No.6 of the judgment as under:- "Needless to emphasis, that 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. If a criminal liability is spelt out from facts and circumstances of a particular case, accused can be tried upon a criminal charge. Quashment of FIR during investigation tantamounts to throttling the investigation which is not permissible in law. However, FIR can be quashed by High Court in its writ jurisdiction when its registration appears to be misuse of process of law or without any legal justification. The police are under a statutory duty under section 154 of the Code of Criminal Procedure and have a statutory right under section 156 of the Code of Criminal Procedure to investigate a cognizable offence whenever a report is made to it disclosing the commission of a cognizable offence. To quash the police investigation on the ground that the 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." By now it is well settled that this Court cannot stop the investigating agency to investigate the case and collect evidence where criminal liability is spelt out from facts and circumstances of a particular case as quashment of FIR during investigation would amount to throttling the investigation which is not permissible under the law. However, if on completion of investigation of a case, the investigating agency concludes that, evidence collected against accused, is not sufficient to implicate him, the Magistrate concerned has authority to order release of accused upon the report submitted before him by the investigating officer. The Magistrate under section 249-A, Cr.P.C. has also ample powers to acquit an accused at any stage of the case after hearing the prosecutor and accused and for reasons to be recorded if he comes to the conclusion that the charge is groundless and there is no probability of recording conviction against the accused. Likewise, if the case is triable by Sessions Court, the accused can seek acquittal under section 265-K, Cr.P.C.

8. Quashment of FIR at the stage of investigation is not contemplated under the law on the subject. In view of above discussion, the petition in hand is found meritless and the same is dismissed. HBT/M-96/L Petition dismissed.