P L D 2009 Supreme Court 102 (PLP)

IJAZ-UL-HASSAN KHAN, J.

Leave to appeal is sought against a judgment of the Peshawar High Court, Peshawar dated 22-1-2008, dismissing Writ Petition No.1560 of 2007, filed on behalf of Ajmeel Khan petitioner, for quashment of F.I.R. No.336 dated 26-4-2007, registered at Police Station Pabbi, at the instance of Abdur Rahim complainant, for an offence under section 489-F, P.P.C.

2. Briefly stated the facts are, that on 26-4-2007, Abdur Rahim and Qazi Rahman sons of Malik Sher Ahmad Khan, co-villagers of the petitioner, addressed an application to District Police Officer, Nowshera, stating therein that some blank cheques (two in number), issued on behalf of petitioner in favour of respondent Nos. 1 and 2 have been dishonoured by Bank concerned due to insufficient fund in the account of Jan Muhammad and thus a case under sections 419/420/421/422, P.P.C. be registered. After due process, a case under section 489-F, P.P.C. was registered against the petitioner and others through the F.I.R. in question. The petitioner was arrested and subsequently enlarged on bail. The petitioner preferred a writ petition in the Peshawar High Court, Peshawar, which was dismissed as stated and mentioned above, giving rise to the filing of instant petition.

3. Haji Muhammad Zahir Shah, Advocate for the petitioner, asks for leave to appeal against High Court's decision, contending that petitioner is neither the signatory nor he is the account-holder of the cheques and the registration of the case against the petitioner, is illegal, void and without lawful authority. Adds that the police officers have not acted in accordance with law and have substituted the petitioner for real culprit and F.I.R. is liable to be quashed against him.

4. Mr. Muhammad Asif, Advocate appearing on behalf of respondents Nos. 1 and 2, on the contrary supported the impugned judgment on all counts maintaining that learned High Court has declined to quash the F.I.R. for valid and cogent reasons, which are not open to legitimate exception.

5. We have heard at length the arguments of learned counsel for the parties in the light of the material on record.

6. Needless to emphasise, 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 F.I.R. during investigation tantamounts to throttling the investigation which is not permissible in law. However, F.I.R. 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 congnizable offence whenever a report is made to it disclosing the commission of a congnizable 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.

7. The conduct and manner of investigation normally is not to be scrutinized under Constitutional jurisdiction which might amount to interference in police investigation as the same could not be substituted by the Court.

8. There is no cavil about the proposition that if Investigating Officer after investigation of a case comes to a conclusion that the evidence against the accused is deficient and the Magistrate who is competent to take the congnizance can order for the release of accused upon such report submitted by Investigation Officer.

9. Section 249-A, Cr. P. C. clearly shows that Magistrate is given power of acquitting an accused person at any stage of the case, if after hearing the prosecutor and the accused and for reasons to be recorded, he considers that charge is groundless or that there is no probability of the accused being convicted of any offence. It has been held by this Court on various occasions that the investigation stage is outside the purview of the Court and High Court has no power of supervision or control over Investigating Agencies, which power is vested in it in respect of Courts subordinate to it. M.S. Khawaja v. The State PLD 1965 SC 287, Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC

677. A similar proposition came up for hearing before this Court in Colonel Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276, in which the following principle was laid down:-- "It is also a settled proposition of law that if prima facie an offence has been committed, ordinary course of trial before the Court should not be allowed to be deflected by resorting to constitutional jurisdiction of High Court. By accepting the constitutional petition the High Court erred in law to short circuit the normal procedure of law as provided under Cr.P.C. and police rules while exercising equitable jurisdiction which is not in consonance with the law laid down by this Court."

12. Having considered the matter from all angles, we find no infirmity, legal or otherwise or jurisdictional error, which could justify this Court to interfere in the matter in exercise of constitutional jurisdiction. Once an F.I.R. is registered, the superior courts, having constitutional, supervisory and inherent jurisdiction, have consistently restrained from directly interfering with police investigation of a criminal case as the Courts could not exercise its control over the investigation, which may be prejudicial to the accused as well as detrimental to the fairness of proceedings, apart from being without jurisdiction.

13. What emerges from the above discussion is that there is nothing wrong with the judgment of the learned Single Judge by which he had declined to exercise constitutional jurisdiction at the instance of the petitioner qua the quashment of F.I.R. The judgment does not, in the aforementioned circumstances, call for interference by this Court.

14. In this view of the matter, finding no substance in this petition, we dismiss the same and decline to grant leave. M.H./A-6/S Petition dismisse