Quashment in case of kidnapping of minors

 PLJ 2021 Lahore (Note) 121

Present: M. Bilal Khan, J.

KARAMAT ULLAH--Petitioner

versus

GUARDIAN JUDGE, LAHORE and 5 others--Respondents

W.P. No. 7832 of 2009, decided on 17.9.2009.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), S. 363--Quashment of FIR--Kidnapping of minors--Petitioner was co-accused--Preliminary stage--Alternate remedy--Case in hand is at preliminary stage, having been registered on 9.4.2009, therefore, any interference by High Court at this stage in its constitutional jurisdiction would amount to pre-empting functions of investigating agency or trial Court, which is neither appropriate nor desirable--Petitioner has alternate remedy to move an application under Section 249-A, Cr.P.C. before trial Court, which he may, if so advised, avail at an appropriate stage--Petition dismissed.

                                                                                             [Para 6] A

2006 SCMR 512, 2008 SCMR 839 and 2006 SCMR 276 ref.

Mr. Shah Nawaz Khan Niazi, Advocate for Petitioner.

Mr. Muhammad Iqbal Chaudhry, Deputy Prosecutor-General Punjab for State.

Mr. Ahmad Saeed Sheikh, Advocate for Complainant.

Date of hearing: 17.9.2009.

Order

Karamat Ullah son of Asghar Ali, the petitioner, by filing this constitutional petition has sought quashing of case F.I.R. No. 312, dated 9.4.2009 registered with Police Station Islampura, Lahore, for an offence under Section 363, P.P.C.

2. The allegation against the petitioner and his co-accused, according to the F.I.R. registered on the basis of order dated 8.4.2009 passed by Sadiq Masood, Guardian Judge, Lahore, was that they in connivance with one another had kidnapped the minors i.e. 3½ year-old girl Sameen Irshad and 1½ year-old boy Muhammad Noraan, whose custody had been handed over to the present petitioner’s co-accused, namely, Rehmat Ullah Arshad for visitation purpose by him (Guardian Judge). It had further been alleged in the F.I.R. that the minors had been flown to Dubai the same day and that it was done with a view to depriving their mother Mst. Tahira Jabeen of their lawful custody.

3. In support of his plea for quashing the F.I.R. the learned counsel for the petitioner argued that the petitioner is innocent and has committed no offence as he has no concern whatsoever with the culprits as he had got published a proclamation in a renowned newspaper regarding relinquishment of his relations with his son due to his ill deeds much prior to registration of the case; that registration of the impugned F.I.R. is nothing but an abuse of authority on the part of the Guardian Court (Respondent No. 1); that the impugned F.I.R. has been lodged against the petitioner with mala fide intention with a view to blackmailing and harassing him with ulterior designs.

4. The case had been registered as far back as on 9.4.2009. The petitioner had been granted interim- anticipatory bail by this Court on 22.6.2009 and the said bail petition remained pending for last about five months. Pre-arrest bail plea of the petitioner has been turned down by this Court vide order of even date passed in Crl. Misc. No. 7156/B of 2009.

5. All the pleas raised by the learned counsel for the petitioner in support of this petition belong to the realm of factual controversy, which, I am afraid, cannot be entertained 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 S.C.M.R. 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 confront the documents in question. Likewise, in the case of Rafique Bibi v. Muhammad Sharif and others (2006 S.C.M.R. 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. The minute examination of the record indicates that offences alleged in the impugned F.I.R. are prima facie made out. It will not be just and fair to quash the criminal proceedings at the initial stage as laid down in the case of Seema Fareed and others vs. The State (2008 S.C.M.R. 839).

6. The case in hand is at preliminary stage, having been registered on 9.4.2009, 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 the alternate remedy to move an application under Section 249-A, Cr.P.C. before the trial Court, which he may, if so advised, avail 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.

(Y.A.)  Petition dismissed