Order Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

C. P. No. D – 861 of 2019

 

 

Before :

Mr. Justice Abdul Maalik Gaddi

Mr. Justice Arshad Hussain Khan

 

 

Date of hearing        :           16.07.2019.

 

 

Mr. Sohail Ahmed Khoso, Advocate for the petitioner.

Mr. Shabbir Ali Bozdar, Advocate holding brief for Mr. Achar Khan Gabol, Advocate for respondent No.4.

Mr. Abdul Rehman Kolachi, Deputy Prosecutor General for the State along with Muhammad Aslam, SIP/SHO P.S Lakha Road and SIP/IO Ghous Bakhsh Shar.

 

 

O R D E R

 

ABDUL MAALIK GADDI, J.–Muhammad Ali (petitioner) seeks the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for quashment of FIR No. 33/2019 under Section 344 PPC registered at Police Station Lakha Road, District Naushahro Feroze.

2.         We have heard the learned counsel for the parties and perused the available record with their assistance.

3.         In the present case, FIR has already been registered against the petitioner and the investigation is pending and could not be concluded because of grant of stay in the case by this Court vide order dated 30.05.2019.

4.         It is argued by learned counsel for the petitioner that the brother of the petitioner had contracted marriage with respondent No.4 by performing Nikah according to Shariat-e-Muhammadi with consent of their parents. Out of said wedlock, there are four issues namely Hassan Ahmed, Kabir Ahmed, Baby Shazia and Baby Maria but respondent No.4 malafidely showed herself as the wife of the petitioner in FIR but actually she was the wife of Ghulam Mehdi.

5.         According to the petitioner, respondent No.4 filed application under Section 491 Cr. P.C before the Sessions Judge, Naushahro Feroze, which was subsequently transferred to 3rd Additional Sessions Judge, Naushahro Feroze who passed order for registration of the FIR only against the husband of respondent No.4 and it was clear direction but in spite of such direction, SHO lodged the FIR against the present petitioner and his other brothers malafidely, therefore, the same may be quashed.

6.         As observed above, the investigation is stopped and in our view at this stage, case of the petitioner cannot be considered under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Moreover, this Court would refrain from rendering any finding on the merits of the case at this stage of the case, which may prejudice the case of either party in any manner whatsoever and considers that the legal and factual issue raised in the present petition can be taken by the petitioner in the first instance before the Investigating Officer and then even before framing of charge by the trial Court, if at all challan is submitted against the petitioner and the learned trial Court has the power to discharge the petitioner. The parameters of Court’s jurisdiction were dilated upon as early as Khawaja Nazir Ahmed’s case (AIR 1945 PC 18) wherein it was held:

“The 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, always of course, subject to the right of the Court to interfere in an appropriate case when moved under section 491, Cr.P.C. to give direction in the nature of habeas corpus. In such a case as the present, however, the Courts function begins when a charge is preferred before it and not until then. ”

7.         We have noted that in the said FIR besides petitioner, other accused are also nominated and the petitioner through this petition is seeking quashment of FIR only to the extent of petitioner. The partial quashment of FIR is not permissible under the law in view of the case of Director-General, Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others reported in PLD 2013 Supreme Court 401.

8.         Besides this, in this petition disputed questions of facts have also been raised, therefore, at this stage it is not proper for this Court to decide the questions of facts. Since the investigation is pending, therefore, under the circumstances it reveals that adequate alternative remedy is available to the petitioner by placing / agitating his case, in the first instance, before the Investigating Officer of the case; if the same cannot be addressed then of course before the trial Court. During the course of arguments, we have specifically asked the question from learned counsel for the petitioner to satisfy this Court with regard to maintainability of this petition when investigation is pending. Though he replied, as stated in this petition, but the reply is found not satisfactory.

9.         Accordingly, for the reasons stated hereinabove, the present petition is dismissed along with the listed application. Investigating Officer of the case is directed to investigate the matter without fear and favour and proceed further as per law.

10.       This petition was dismissed after hearing the parties in the early part of the day in the open Court and aforesaid are the reasons in support of thatshort order.

 

 

 

J U D G E

 

J U D G E

Abdul Basit