1998 PLP 1199 (MLD)

5. In the case of Fateh Ali v. Province of Balochistan through Secretary, Health and others (1997 SCMR 1687), the apex Court approved the findings of the High Court that in a case of serious factual controversy the discretionary Constitutional jurisdiction could be declined. As a Court of competent jurisdiction is seized of the matter, the interference by the High Court in the exercise of the Constitutional jurisdiction is not called for.

6. A Full Bench of the Supreme Court as early as 1967 while disposing three appeals titled: (1) Ghulam Muhammad v. Muzammal Khan and 4 others (Criminal Appeal No. 29 of 1966). (2) Ghulam Muhammad v. Muzammal Khan and 3 others (Criminal Appeal No. 30 of 1966) and (3) Ghulam Muhammad v. Muzammal Khan and 5 others (Criminal Appeal No. 31 of 1966) (PLD 1967 SC 317) thoroughly examined the inherent power of the High Court contained in section 561-A read with sections 435, 438 and 439, Cr.P.C., and while setting aside the High Court's order quashing proceedings under section 561-A, Cr.P.C., observed as follows:- "It is, therefore, generally accepted that the inherent jurisdiction should not normally be invoked where another remedy is available. If, in fact, an offence had been committed justice required that it should be inquired into and tried. If the respondents are not guilty they have a right to be declared as honourably acquitted by a competent Court. On the other hand, if the evidence against the respondents discloses a prima facie case then justice clearly requires that the trial should proceed according to law. The mere fact that a long period has expired since the initiation of proceedings is no ground for quashing the criminal proceedings as was pointed out in the case of N.S. Khawaja v. The State.' The High Court, as has repeatedly been pointed out in a number of decisions, should be extremely reluctant to interfere in a case where a competent Court has after examining the evidence adduced before it, come to the view that a prima facie case is disclosed and has framed the charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence. .....has merely proceeded on an erroneous conception that in a case where a complaint has been filed the police has no jurisdiction to investigate into any other offence which comes to its notice in the course of investigation of the complaint, particularly, if the offence disclosed is of a non-cognizable nature." ....we can see no legal bar to the police submitting a challan in respect of offences other than those mentioned in the First Information Report, if the same should come to its notice during the course of investigation ."

7. A similar view was expressed by a Division Bench of this Court, of which I had the privilege of being a member, in case Muhammad Shabbir v. Muhammad Saleem (W.P.No 456 of 1996).

8. At this stage, I would like to mention that the ruling given by the Full Bench of this Court in the case of Hafiz Abdul Waheed v. Miss Asma Jehangir and another (PLD 1997 Lahore 301) is not applicable to the facts of the case in hand.

9. In the instant case, it is question of fact which requires inquiry/investigation and the F.I.R. cannot be quashed summarily. Even the allegation of mala fides in registration of the case cannot be properly and judiciously assessed at this stage as the investigation is yet to be made and the evidence is yet to be recorded. This finds support from the decision in the case of Sheikh Rashid Ahmad v. Lutf Ali Malik and another (1995 P. Cr. L. J 717). Reliance is also placed on the case of Ahmad Saeed v. The State and another (1996 SCMR 186).

10. The matter in dispute can only be resolved after the parties have adduced their respective evidence. The writ petition has no merits and is accordingly dismissed. H.B.T./F-49/L Petition dismissed.