PLJ 2023 Islamabad (Note) 98
Present: Lubna Saleem Pervez, J.
Sheikh MUHAMMAD NADEEM--Petitioner
versus
STATE and another--Respondents
W.P. No. 2234-Q of 2019, decided on 29.10.2020.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 561-A--Constitution of Pakistan, 1973, Arts. 199, 249-A & 265-K--Quashment of FIR--Maintainability--Alternate remedy--Petitioner has alternative efficacious remedy in terms of Sections 249-A and 265-K, Cr.P.C. can he applied at appropriate stages, even at initial stages of trial--Instant writ petition is not maintainable as petitioner has an adequate, alternate remedy available to him under Section 249-A, Cr.P.C.,--No prejudice would be caused to Petitioner through dismissal of this petition as investigation is completed and his bail before arrest has already been confirmed by concerned Court--Petition dismissed. [Para 8 & 9] B & C
2016 PCr.LJ 693.
Quashment of FIR--
----“The law is settled by now that after taking of cognizance of a case by a trial Court the FIR registered in that case cannot be quashed and the fate of the case and of the accused persons challaned therein is to be determined by the trial Court itself--It goes without saying that if after taking of cognizance of a case by the trial Court an accused person deems himself to be innocent and falsely implicated and he wishes to avoid the rigors of the trial then the law has provided him a remedy u/Ss. 249-A/265-K, Cr.P.C. to seek his premature acquittal if the charge against him is groundless or there is no possibility of conviction.” [Para 8] A
2005 PCr.LJ 1681.
Ch. Fayyaz Ahmad Padana, Advocate for Petitioner.
Raja Muhammad Ali, Advocate for State.
Ms. Bushra Tariq Raja, State Counsel.
Date of hearing: 9.10.2020.
Judgment
Through instant Writ Petition under Article 199 of the Constitution of Islamic Republic of Pakistan read with Section 561-A, Cr.P.C., Petitioner seeks quashment of FIR No. 323, dated 07.07.2020, registered under Section 406, PPC, at Police Station Industrial Area, Islamabad.
2. Learned counsel for the petitioner while apprising about the background of the matter submitted that the petitioner is one of the owners in the New Fine Flour Mills along with his nephews and nieces after the death of their fathers, as the said business was inherited from the deceased father of the petitioner and grandfather of other owners. Respondent No. 2 and late father of the petitioner on the basis of close friendship stated business in partnership in the year 2007 which continued even after the said demise of petitioner’s father with the petitioner and his two other brothers. Respondent No. 2 was receiving his agreed profit regularly since September, 2018, without any default and received almost Rs. 19,676,260/-and business ran smoothly till 2019. Differences cropped up when the petitioner purchased the Flour Mill namely New Al-Habib Flour Mills, Saghri, Morr, G.T.Road, Rawat, Rawalpindi which, Respondent No. 2 fraudulently transferred in his own name and when the matter was raised by the Petitioner, Respondent No. 2 started questioning the affairs of New Fine Flour Mills and allegedly in connivance with local police to lodge the subject FIR statedly, on false, frivolous, concocted and fabricated charge.
Learned counsel contended that prior to registration of instant FIR, petitioner also filed a Civil Suit for Rendition of Accountgs and permanent injunction which is pending adjudication in the Court of learned Civil Judge (West), Islamabad; that the Complainant/ Respondents No. 2 through registration of present FIR has tried to make a civil dispute as criminal case, learned counsel in this regard referred judgment of this Court passed in case titled (2017 PCr. LJ 144); that the said FIR has been registered in order to humiliate and pressurize the petitioner. Learned counsel lastly contended that alleged offence has not been made out against the petitioner as the matter is purely of business and investment and not entrustment, therefore, FIR in question is liable to be quashed as being fake and frivolous. Learned counsel in support of his contentions placed reliance on the case law reported as Shoukat Ali versus The State and others (2019 PCr.LJ 1622), Muhammad Nawaz versus SHO Police Station Sabzi Mandi, Islamabad and others (2017 PCr.LJ 133) and Drector General, Anti-Corruption Establishment, Lahore and others versus Muhammad Akram Khan and others (PLD 2013 SC 401).
3. On the other hand learned counsel for Respondent No. 2 and learned State Counsel submitted that the petitioner is on bail, however, the Challan under Section 173, Cr.P.C. has already been filed in the Court and trial has already been commenced; that sufficient material is available on record to connect the petitioner with the commission of alleged offence; that an alternate remedy is available to the petitioner under Section 249-A, Cr.P.C. before the learned Trial Court as under Section 249-A, Cr.P.C., Magistrate has power to acquit the accused at any stage of the trial, therefore, the relief sought under Article 199 of the Constitution for quashing of FIR under Section 561-A, Cr.P.C. is without merit, hence, is not maintainable. Reliance, in support of above contentions was placed on the case law reported as Dr. Ghulam Mustafa versus The State and others (2008 SCMR 76).
4. I have heard the learned Counsel for the parties as well as learned State Counsel and have also perused the relevant record with their able assistance.
5. Admittedly, petitioner is on bail and Challan has already been filed before the concerned Trial Court on 28.08.2020, and trial has commenced, therefore, proper forum for redressal of his grievance would be the concerned trial Court where the report of the Investigating Officer is pending.
6. After going through Section 249-A, I am of the view that under the law, an alternate’ remedy before the Magistrate is available to the Petitioner, who has ample power to acquit the accused on the basis of report of Investigating Officer filed under Section 173, Cr.P.C. Guidance has been taken from the law laid down in case reported as Director General Anti-Corruption versus Muhammad Akram (PLD 2013 SC 401), wherein The Honourable Supreme Court of Pakistan has observed as follows:
“The law is settled by now that after taking of cognizance of a case by a trial Court the FIR registered in that case cannot be quashed and the fate of the case and of the accused persons challaned therein is to be determined by the trial Court itself. It goes without saying that if after taking of cognizance of a case by the trial Court an accused person deems himself to be innocent and falsely implicated and he wishes to avoid the rigors of the trial then the law has provided him a remedy under Sections 249-A/265-K, Cr.P.C. to seek his premature acquittal if the charge against him is groundless or there is no possibility of conviction.”
Similar view has been taken by a learned Single Bench of the Hon’ble Lahore High Court, Lahore in case of Muhammad Shoaib versus S.H.O. Police Station new Multan and another (2005 PCr.LJ 1681), by holding that:
“It has also been held in Ghulam Muhammad vs. Muzammal Khan and others PLD 1967 SC 317 that when the alternative remedy is available to the petitioner under Section 249-A or 265-K,, Cr.P.C. Constitutional petition would not lie. No illegality or malafide and jurisdictional error has been found in this case. Instant writ petition having without substance is dismissed.”
Further, this Court in case reported as Sajid Javed versus SHO PS Sabzi Mandi (2016 PCr.LJ 693) observed that the petitioner has alternative efficacious remedy in terms of Sections 249-A and 265-K, Cr.P.C. which can be applied at the appropriate stages, even at the initial stages of trial.
9. In view of above, I am of the firm view that instant writ petition is not maintainable as the petitioner has an adequate, alternate remedy available to him under Section 249-A, Cr.P.C., Moreover, no prejudice would be caused to the Petitioner through dismissal of this petition as investigation is completed and his bail before arrest has already been confirmed by the concerned Court. Hence, titled petition is dismissed, accordingly.
(A.A.K.) Petition dismissed
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