2005 P Cr (PLP)

SYED SHABBAR RAZA RIZVI, J.

The learned counsel has filed this writ petition on behalf of the petitioner who is residing in London for quashment of F.I.R. No.480 of 2003 dated 14-12-2003 under section 380, P.P.C. registered at Police Station Township, Lahore.

2. It may be pointed out at the very outset that the petitioner has filed the present writ petition through Sher Muhammad, duly authorized by him.

3. On the first day of hearing I asked the learned counsel for the petitioner whether this writ was maintainable in absence of the petitioner from the country and also that he never joined the investigation for a single day? The learned counsel asked for time to assist the Court on this point by referring some case-law. He again sought time on 21-6-2005, and the case was fixed for 12-7-2005. The learned counsel on the said date did not appear instead Mr. Naseem Iqbal, Advocate appeared on his behalf. Today, the learned counsel has not referred any case-law directly on the proposition, however, he submits that proceedings under Constitutional jurisdiction are of civil nature, hence, as in proceedings under C.P.C., parties can be represented through counsel, the petitioner in this writ petition can also be represented. He also submits that provisions of Article 199 of the Constitution do not prohibit present petition.

4. On the other hand, the learned Additional Advocate-General, Punjab opposes the above arguments and refers to PLD 1987 Lah. 288. the Investigating Officer present in the Court submits that the petitioner never joined the investigation and has been declared a proclaimed offender. He also submits that co-accused Arshad Munir had come from abroad to join investigation in this case. He surrendered before a Court and granted pre-arrest bail. During the course of investigation he was found innocent.

5. I have heard the learned counsel for the parties. The writ jurisdiction under Article 199 of the Constitution is an original Constitutional jurisdiction. This Constitutional jurisdiction pertains to civil as well as other matters. Whether a proceeding is of civil nature or not, depends on the nature of the subject-matter of the proceeding and its object. (Hussain Bakhsh v. Settlement Commissioner PLD 1970 SC 1). The registration of F.I.R. and its quashment, subject-matter of the Present writ petition, basically relates to provisions of Code of Criminal Procedure and Police Rules, therefore, Civil Procedure Code is not applicable.

6. Another aspect of the matter is that Article 199 of the Constitution can be invoked by such an aggrieved party, who has no adequate remedy available under any law. In the present case, the petitioner has remedies under Code of Criminal Procedure and other laws by surrendering himself before the concerned Court or authorities. He may avail of these remedies. He left the country after registration of c case. Moreover, while he is not ready to surrender and submit before the law, he wants to reap benefit of law by invoking Constitutional jurisdiction of this Court. This paradoxical stand and behaviour cannot be countenanced. This kind of attitude can also be described. as approaching this Court with unclean hands.

7. Jurisdiction under Article 199 of the Constitution is a discretionary jurisdiction which High Court may exercise if it is satisfied that no other adequate remedy is available. Therefore, "Satisfaction" is a pre-requisite for exercise of jurisdiction under Article

199. As a matter of fact, the framers of the Constitution have put a lot of responsibility on the High Court by conferring above jurisdiction to be used in its discretion; it is axiomatic that discretion has to be used judiciously.

8. In a similarly case of quashment of an F.I.R., this Court held as under:

"Article 199 of the Constitution of the Islamic Republic of Pakistan bestow a Constitutional jurisdiction upon the High Courts. Before exercising this extraordinary Constitutional jurisdiction, the High Court must be satisfied that there is no other adequate remedy provided by law. The Constitutional jurisdiction of the High Court is not meant to supersede and render redundant alternate remedies already provided by law. The Constitutional jurisdiction of the High Court is not meant as an alternate jurisdiction. The Code of Criminal Procedure apart from laying down the procedure to be followed by Courts as now by way of section 249-A empowered all Magistrates and by way of section 265-K empowered all Sessions' Courts to acquit an accused persons at any stage of the trial when it is satisfied that no case is made out against the accused persons and that continuing with the trial amount to mock trial. (Naeem Jaffar v. Senior Superintendent of Police 1997 MLD 1198)." In another case in which quashment of F.I.R. was sought, a learned Division Bench of this Court identified 7 remedies which may be resorted to before invoking Constitutional jurisdiction. The Court held as below:-- "The Constitutional petition filed by the appellant was liable to be dismissed also on the ground that the petitioner-appellant had a number of remedies available to him. To begin with, the remedy is available before the Investigating Officer where the appellant has a definite opportunity of pleading his innocence. In case the accused is not satisfied, either with the conduct of the investigation or with that of a particular Investigating Officer the accused person still has remedies by approaching the higher Police Officers in the same hierarchy who, by virtue of the provisions of section 551 of the Cr.P.C., have all the powers of officers incharge of police stations within their respective jurisdiction. The provisions of section 63 of the Cr.P.C. authorize Magistrate to discharge the accused persons and in case, an accused person feels that he is innocent, then, besides an opportunity which he has before the Investigating Officer, he can even petition the concerned learned Magistrate for his discharge from the ' case in question if the facts and " circumstances so warrant. Rule 24.7 of the Police Rules of 1934 makes a provision for cancellation of cases during the course of investigations under the orders of the concerned Magistrates. There are then remedies which are available to accused persons who claim to be innocent and who can seek relief without going through the entire length of investigations. After the investigation is over, the matter reaches the authorized Magistrate under section 190 of the Cr.P.C. where an accused person can once again plead his innocence and as a result of which, the learned Magistrate could refuse to take cognizance of the case thus, providing relief to an accused person, if he deserved the same. Thereafter, the accused person has a right to demand his discharge or acquittal, as the case may be, during the course of the judicial proceedings/trial being held on the allegations in question by praying firstly for not being charged and consequently, being discharged and subsequently praying for acquittal either under section 249-A of the Cr.P.C. or under section 265-K of the same Code, as the case may be. In the presence of such a large number of remedies available to an accused person, it would be difficult for us to hold that an accused person calling an F.I.R. in question by invoking the jurisdiction conferred on this Court under Article 199 of the Constitution, would be an aggrieved person without any adequate or alternate remedy being available to him." (PLD 1997 Lah. 385)

9. As noted above, the petitioner did not join the investigation, he avoided to appear before Investigating Officer. Had he joined the investigation, he might have been declared innocent, like his co-accused, who has been declared innocent, as reported by the Investigating Officer. Judicial discretion cannot be exercised in favour of a person who is fugitive from justice. A fugitive from law and justice loses some normal rights granted by procedural and substantive law, PLD 1985 SC 402.

10. Learned Additional Advocate-General, Punjab referred PLD 1987 Lah.

288. The said judgment deals with section 540-A, Cr.P.C. which relates to exemption from presence before the Court or authorities during a trial or inquiry. The present case relates to quashment of an F.I.R. Moreover, the petitioner never made such request for exemption, therefore, the said judgment is not applicable to the present case.

11. For reasons enumerated above, this writ petition is dismissed as it has no legal justification. N.H.Q./S-436/L Petition dismissed.