2003 PLP 1997 (YLR)

MUHAMMAD ROSHAN ESSANI, J.

By this Constitutional petition, the petitioner Noman Siddiqui has sought quashment of two cases registered under section 39 of Electricity Act, 1910 pending against him in the Court of Special Magistrate Karachi Electric Supply Corporation, Karachi (KESC) which arose out of F. I. R. No. 187 of 1998 and F.I.R. No.188 of 1998 of Police Station KESC. He has also sought quashment of two F.I.Rs. bearing Nos.26 of 2001 and 27 of 2001 under section 39 of Electricity Act, 1910 registered against him at Police Station KESC, Karachi pending investigation with police. The brief facts of the four F.I.Rs. stated hereinabove are that the petitioner is running a marble factory at Karachi. A raiding party of KESC alongwith police of concerned police station raided the factory and found the petitioner committing theft of electricity by tampering the electricity meter as well as supply line/cable of electricity. He was getting energy by illegal source and thereby caused loss to the tune of millions of rupees to KESC. I have heard Mr. Abdul Karim Khan learned counsel appearing on behalf of the petitioner and perused the material placed on record. In the first instance we would like to examine the prayer relating to quashment o proceedings. The perusal of material placed of record shows that the petitioner has no exhausted remedy before the proper forum provided under law. It is well-settled that the Constitutional jurisdiction is not additional or alternate, and if alternate remedy is available, writ jurisdiction cannot be invoked. Moreover, the statutes are creatures of the Constitution. Admittedly, the applicant/accused has not approached the trial Court under section 249-A, Cr.P.C. but has directly tiled present petition under Article 199 of Constitution of Islamic Republic of 1973. The powers of High Court under Constitutional jurisdiction are though very wide but they are not supposed to bet exercised to override express provisions of law. It is not the function of this Court to weigh, assess or evaluate the evidence of prosecution or defence under Constitutional jurisdiction. The evaluation of evidence is function of the trial Court. The delay in lodgment of F.I.R. cannot be held to be a valid ground for quashment of proceedings in each and every case. The question of delay and its consequent effect on prosecution case could only be considered and determined by the trial Court at the time after the prosecution witnesses are examined and cross-examined. In the case of A. Habib Ahmed v. M.K. alias Scott Christian reported in PLD 1992 SC 353 it was observed that if prima facie offence had been committed the ordinary course of trial before the Court was not to be allowed to be deflected by approach to special revision or inherent jurisdiction of I High Court. Resultantly, the prayer for the quashment of proceedings in respect of two cases pending before the Special Magistrate, KESC is misconceived and is dismissed. The next prayer relating to quashment of two. F.I.RS. registered against the petitioner and pending investigation with police is also misconceived. The F.I.R. during the investigation cannot be quashed. In the case of Shehnaz Begum v. Honourable Judges of High Court of Sindh and Balochistan reported in PLD 1971 SC 677 a Full Bench of the apex Court held that the High Court cannot interfere in the investigation undertaken by police. Again in the case of Ahmed Saeed v. The State reported in 1996 SCMR 186, it was held by the Honourable Supreme Court that the High Court is not competent to quash the F.I.R. when the investigation was not completed and no challan has been submitted in the Court and no proceedings were pending in the Court. It was further observed that the High Court cannot quash F.I.R. on the ground of mala fide or F.I.R. discloses civil liability. Admittedly, the matter is at investigation stage and case has not been sent up to the Court. If the case after investigation is sent up in the Court and applicant is challaned he can avail of remedy before the trial Court under section 249-A, Cr.P.C. for his acquittal after proving that the charge is groundless or there is no probability of his conviction. Consequently the prayer for quashment of F.I.Rs. pending investigation with police is declined. Resultantly, we see no merit in the present petition and the same is dismissed. The trial Court is, however, directed to complete the trial of two cases pending against the petitioner as early as possible. The above are the detailed reasons of our short order dated 24-10-2003. H.B.T./M-497/K Petition dismissed.