2009 PLP 1493 (YLR)

RAJA MUHAMMAD SHAFQAT KHAN ABBASI, J.

The petitioners, namely, Rai Muhammad Khan son of Qutab Hussain, by filing this constitutional petition has sought quashing of the three F.I.Rs.(1), F.I.R. No.67, dated 19-1-2'009, registered with Police Station Lower Mall, Lahore for offences under sections 409, 420, 468, 471, P.P.C. (2) F.I.R. No.105, dated 30-1-2009, registered with Police Station Islampura, Lahore for an offence under section 489-F, P.P.C. and (3) F.I.R. No.33, dated 27-2-2009, registered with Police Station ACE, Lahore for offences under sections 409, 420, 468, 471, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947.

2. Precisely the facts as narrated in paragraph 2 of the petition are that the petitioner is Secretary of Union Council No.70, Lahore, whereas respondent No.5 is the Nazim of the said Union Council,; respondent No.5 on different occasions had withdrawn an amount, which was more than Rs. one million, from account of the Union Council for development purposes, but the same was not used in any scheme; after change of the regime, the government agencies, especially respondent No.4 (Director, Anti-Corruption Establishment, Lahore) started making inquiries. According to the petitioner, Nazim came to him in his village Bahumaan, where he is residing and stating a concocted story, requested him to furnish an affidavit admitting therein that he had committed frauds and on his furnishing affidavit, he will get a case registered against him, but during investigation, the inquiries will be dropped against him and he will withdraw the case against him, thereafter he got registered F.I.R. No. 67 of 2009; after few days, when the petitioner asked the Nazim (respondent No.5) to withdraw the said F.I.R., he started lingering on the matter on one pretext or the other and thereafter got the latter two F.I.Rs. registered against him.

3. The learned counsel argues that aforesaid three F.I.Rs. are result of mala fide intention of respondent No.5; that as all the three F.I.Rs. are outcome of one occurrence, only one F.I.R. registered with the Anti-Corruption Establishment could proceed, therefore, rest of the two may be quashed; that he offered the aforesaid explanation before the investigating agencies, but they are not recording his version.

4. After hearing the learned counsel for the petitioner and going through the record available on the file, it has been observed that the petitioner has specifically been nominated in the aforesaid F'.I.Rs. and stands saddled with definite allegations. If the F.I.Rs. are taken at its face value the same prima facie disclose commission of cognizable offences. In order to appreciate the contentions of the learned counsel for the petitioner, a factual inquiry needs to be undertaken, which, I am afraid, cannot be embarked upon by this Court in the present summary proceedings under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Reference can profitably be made to the case of Col. Shah Sadiq v. Muhammad Ashiq and others (2006 SCMR 276), wherein it was held that High Court has no jurisdiction to resolve disputed questions of fact in constitutional jurisdiction. It was further observed by their lordships that if prima facie an offence had been committed, ordinary course of trial before the Court should not be allowed to be deflected by resorting to constitutional jurisdiction of High Court; that High Court had no jurisdiction to quash F.I.R. by appreciation of documents produced by the parties without providing chance to cross-examine or confronting the documents in, question. Likewise, in the case of Rafique Bibi v. Muhammad Sharif and others (2006 SCMR 512), the Hon'ble apex Court held that disputed ,questions of fact could not be gone into in proceedings under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

5. Allegations leveled in the impugned F.I.Rs., qua forgery of the signatures, on various' cheques, embezzlement/misappropriation in the funds of Union Council, dishonouring of cheque with dishonest intention and commission of fraud, purely relate to the question of fact. This Court while exercising discretionary jurisdiction cannot undertake the role of investigator in the matter. Quashing of F.I.Rs. at this initial stage of investigation, will tantamount to throttling investigation which is not permissible under the law. Conduct and manner of investigation cannot be scrutinized while 'exercising constitutional jurisdiction. Investigation is the domain of investigating agency, which cannot be interfered with on the flimsy grounds. Reliance can also be placed on the case of Ajmeel Khan v. Abdur Rahim (PLD 2009 $C 102). Contention of the petitioner regarding registration of three F.I.Rs. on one transaction amounting to violation of Article" 13 of the Constitution of Islamic Republic of Pakistan, 1973 does not have much force. I do not want to comment on it at this stage lest it may prejudice the case of either side.

6. The cases in' hand are at preliminary stages as having been registered on 19-1-2009, 30-1-2009 and 27-2-2009, therefore, any interference by this Court at this stage in its constitutional jurisdiction would amount to pre-empting the functions of the investigating agency or the trial Court, which is neither appropriate 'nor desirable. Even otherwise, the petitioner has more than one alternate remedies, as held in Col. Shah Sadiq's case (supra), which are as follows:- (a) To appear before the Investigating Officer to prove their innocence. (b) To approach the competent higher authorities of the Investigating Officer having powers vide section 551 of Cr.P.C. (c) After completion of the investigation, the Investigating Officer has to submit case to the, concerned Magistrate and the. Magistrate concerned has power to discharge them under section 63 of the Cr.P.C. in case of their innocence. (d) In case he finds the respondents innocent, he would refuse to take cognizance of the matter: (e) Rule 24.7 of the Police Rules of 1934 makes a provision for cancellation of cases during the course of investigation under the order of the concerned Magistrate. (f) 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 investigation." The petitioner may, if so advised, avail the same at an appropriate stage.

7. Resultantly, I find no occasion to interfere in the matter at this stage. This petition being meritless is hereby dismissed in limine. H. B. T. /M-226/L Petition dismissed.