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Official Citation: 2024 PCr.LJ 1409
Court / Jurisdiction: Islamabad High Court
Parties: Khush Bakht Mirza vs The State etc.
Ruling Summary: This decision was rendered by the Islamabad High Court, officially reported as 2024 PCr.LJ 1409. In this matter between Khush Bakht Mirza and The State etc., the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Islamabad High Court (Honourable Mr. Justice Arbab Muhammad Tahir) AUTHOR JUDGE: Honourable Mr. Justice Arbab Muhammad Tahir DECISION DATE: 28-FEB-2024 CASE NO: Writ Petition-4200-2022 CITATION: 2024 PCr.LJ 1409 PARTIES: Khush Bakht Mirza VS The State etc. LAW / SECTION: Under Section 154 and 54,59,87,561,154,195 Cr.P.C. Article 199 of the Constitution of the Islamic Republic of Pakistan,1973 ' under sections 420, 467, 468, 471, 34, 409, 109 of Pakistan Penal Code, 1860 'police rules 25.7 of 1934. SUBJECT: Police/FIA Matter, Quashment of FIR REMARKS: Quashment of FIR No. 465/2022 dated 23.10.2022 U/s 420,468,467,471,409,109,34 PPC P.S. Secretariat, Islamabad ============================================================ Form No: HCJD/C-121
ORDER SHEET
IN THE ISLAMABAD HIGH COURT, ISLAMABAD (JUDICIAL DEPARTMENT)
W.P. No.4200-2022
Khush Bakht Mirza
Versus
The State & others
Arbab Muhammad Tahir, J.- Through this consolidated judgment, I shall decide the instant petition alongwith Crl. Misc. No.987/2023 titled “Syed Ali Mardan Shah v. The State & others” and Crl. Misc. No.1546/2022 titled “Syed Ali Mardan Shah v. The State and others”.
2. The petitioner ( Khush Bakht Mirza ) through W.P. No.4200/2022 filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter the “Constitution”) has sought quashment of FIR No. 465/2022, dated 22.10.2022, registered under sections 420, 467, 468, 471, 34, 409, 109 of Pakistan Penal Code, 1860 (hereinafter “PPC”) at Police Station Secretariat, Islamabad, whereas, the petitioner (Syed Ali Mardan Shah ) through Crl. Misc. No.987/2023 and Crl. Misc. No. 1546/2022 filed under section 561 -A of the Code of Criminal Procedure, 1898 (hereinafter Petitioners by (in connected petitions) : Muhammad Bilal, Advocate. Ch. Wajahat Elahi, Advocate. Petitioner in W.P. No. 4200-2022 in person through video link.
State by : Khalid Mehmood Dhoon, Asstt. Attorney General. Malik Awais Haider, State Counsel.
Muhammad Asif, SI. Mr Kashif Awan, SI/FIA.
Date(s) of Hearing : 14.02.2024 Page-2 W.P. No.4200/2022, Crl. Misc. No.1546/2022 & Crl. Misc. No.987/2023. “Cr.P.C.”) has sought quashment of FIR No. 156/2023, dated 17.05.2023 registered under sections 420, 468, 471, 385, 386, 389, 500, 506 PPC, at Police Station Secretariat, Islamabad.
3. The facts relevant for adjudication of the petitions in hand are that W.P. No. 4200/2022 and Crl. Misc. No. 1546/2022 have been filed seeking quashment of FIR No. 465/2022, P.S. Secretariat, Islamabad. It has been alleged in the FIR (sought to be quashed) that the accused persons in connivance with each other had got registered two FIRs.36/2020 and 40/2020 with the Federal Investigation Agency (FIA) on the basis of forged documents against Umar Farooq Zahoo r (respondent No.2) . Through Crl. Misc. No. 987/2023, the petitioner seeks quashment of FIR No. 156/2023, P.S. Secretariat , wherein the allegations leveled through FIR No.465/2022 ( sought to be quashed through W.P. No.4200/ 2022) have been repeated. It is pertinent to note that the petitioner in W.P. No.4200/2022, through C.M. No.2815/2023 have also placed on record copy of FIR No.156/2023. Through the impugned FIRs, Umar Farooq Zahoor has implicated the petitioners and every official of FIA who had either investigated the criminal cases i.e. FIRs No.36/2020 and 40/2020 or was part of the hierarchy.
4. It was mainly argued on behalf of the petitioners that; the complainant of FI Rs is a proclaimed offender ; the allegations leveled in the impugned FIRs is subject matter of FIRs No. 36/2020 and 40/2020 registered with FIA ; the allegations contained in the impugned FIRs can be used as defence by the complainant/Umar Farooq Zahoor but the same cannot constitute offence ; if the allegations in FIRs No.36/2020 and 40/2020 are proved false, the complainant can initiate proceedings under section 182 PPC; even if the petitions have been filed under an irrelevant provision of law, this Court has jurisdiction to convert the same into a writ petition and grant the relief.
Page-3 W.P. No.4200/2022, Crl. Misc. No.1546/2022 & Crl. Misc. No.987/2023. 5. On the other hand, learned counsels for respondents have argued that; the petitioners had forged documents for registration of FIRs No.36 & 40 of 2020 ; the FIRs were registered to defame and blackmail respondent No.2 ; although respondent No.2 will prove his innocence during trial in FIRs No.36 & 40 of 2020 , still he has right to file complaint and get a criminal case registered for preparation of forged documents ; the petition under section 561 -A Cr.P.C. is not competent for seeking quashment of FIR.
6. Heard. Record perused.
DEVELOPMENTS DURING PROCEEDINGS
7. Before adverting to merits of the case, it is pertinent to highlight the developments made during proceedings of W.P. No.4200/2022. This petition has been filed seeking quashment of FIR No.465/2022, P.S. Secretariat, Islamabad. During proceedings, the petitioner through C.M. No.4325/2022 sought impleadment of Federal Investigation Agency on the ground that the FIR No.465/2022 was transferred from P.S. Secretariat to FIA. Consequently, the application was allowed on 23.11.2022. On 15.12.2022, the S.H.O. P.S. Aabpara (who was earlier posted as S.H.O. P.S. Secretariat ) tendered appearance and infor med the Court that he is still investigating the case as the investigations were transferred from one police station to the other under the special instructions of Deputy Inspector General of Police (Operations), Islamabad Capital Territory. He also informed that due to jurisdictional issues, the matter was referred to FIA vide letter, dated 15.11.2022 for further investigations . However, the Deputy Director (Law), FIA informed the Court that the FIA had returned the file back to ICT Police as under Rule 25.7 of the Police Rules , 1934, ICT Police had to cancel the FIR before transferring the same to FIA. Accordingly, on 30.01.2023 this Court was informed by the State Counsel that a report under Rule 25.7 of the Police Rules, 1934 for cancellation of the FIR was prepared. On 26.09.2023, the Page-4 W.P. No.4200/2022, Crl. Misc. No.1546/2022 & Crl. Misc. No.987/2023. representative of FIA informed that FIR No.465/2022, P.S. Secretariat stood cancelled under Rule 25.7 of Police Rules, 1934 as the matter was transferred to FIA for investigations. Subsequently, the petitioner filed C.M. No. 2815/2023 for placing additional documents on record. The petitioner placed on record copy of FIR No.156/2022 registered at Police Station Secretariat . Per usal of the said FIR shows that it is repetition of the earlier FIR (i.e. FIR No.465/ 2022, which was transferred to FIA and cancelled under Rule 25.7 of Police Rules, 1934). After cancellation of FIR No.465/2022, the FIA started inquiry by treating the reference from ICT Police as complaint . The Inquiry Officer of FIA started verification process of the complaint under the Federal Investigation Agency (Inquiries and Investigations) Rules, 2002. The Inquiry Officer made attempts to contact the complainant of impugned FIRs -Umar Farooq Zahoor to verify the contents of complaint, however, he did not respond. Therefore, the inquiry officer closed the said complaint with the following observations.-
“During the course of verification and upon receipt of the PS Secretariat Islamabad FIR No.465/2022, Umer Farooq Zahoor (the Complainant) was contacted on his given email address, sheikhumerfarooq@gmail.com on dated 22.02.2023 and 28.02.2023 to ascertain the contents and ownership of the complaint (the PS Secretariat Islamabad‟s FIR) since it was pointed out in the aforementioned Criminal Petition No.1546 dated 03.12.2022 (instituted) that the Complainant was abroad when the aforementioned police FIR was got registered by him. Despite repeated call -ups, the Complainant did not respond and approach this Agency to ascertain and certify the contents of the complaint and its ownership, in circumspection, the avail able record of this Agency was scrutinized, and relevant officials of the FIA Lahore were telephonically interviewed to ascertain the veracity of the allegations leveled in the complaint. Consequently, it transpired that the complainant [Umar Farooq Zahoor ] is wanted in multiple FIRs of the FIA Lahore viz FIR Nos 343/2020 [PS FIA AHTC Lahore] and 36/2020 & 40/2020 [PS FIA CCC Lahore] etc. The Non -bailable arrest warrants and Proclamations Orders were duly issued against him by the competent courts, and the same are part of the FIA and the Court records. Moreover, he had been subject to Page-5 W.P. No.4200/2022, Crl. Misc. No.1546/2022 & Crl. Misc. No.987/2023. INTERPOL Red Notice twice, and Exit Control List (ECL) . The IBMS transpires that the complainant was abroad at the time of filing his complaint and registration of FIR No.465/2022 of PS Secretariat Islamabad Police against the ex -DG FIA, the officials of FIA Lahore, and others. Moreover, the order dated 04.06.2022 of Judicial Magistrate Lahore negating issuance of Non -bailable Arrest Warrnats against Umer Farooq Zahoor in the F IA CCC Lahore‟s Fir 36/2020 & 40/2020, which is agitated by Umer Farooq Zahoor in PS Secretariat Islamabad‟s FIR 465/2022, has been withdrawn/rectified by the same learned Judicial Magistrate Lahore vide his orders dated 05.11.2022. In view of the limited scope of the instant verification, the copies of aforesaid non -bailable arrest warrants, proclamation orders, court orders, and miscellaneous documents were electronically obtained from relevant officials of the FIA Lahore which controvert the contents of the instant complaint . In view of the aforementioned, it is recommended that the instant complaint be closed on the grounds, inter alia, that the complainant could not associate himself with the complaint despite repeated call -ups and the contents of the complaint are controverted by the FIA and the court record, subject to the approval of the competent authority, please. ” (These recommendations were subsequently approved by the competent authority on 11.04.2023 and the case was closed).
BACKGROUND OF FIRs.36 & 40 OF 2020, P.S. CCC, FIA, LAHORE.
8. FIRs No.36 & 40 of 2020 were registered against Umer Farooq Zahoor under sections 408, 409, 419, 420, 467, 471, 108-A, 3 PPC read with sections 3 & 4 of the Anti -Money Laundering Act, 2010 at the Police Station, FIA -CCC, Lahore. In these criminal cases, Umar Farooq Zahoor , who is complainant in FIRs No. 465/2022 and 156/2023 registered at Police Station Secretariat, has been declared as “Proclaimed Offender” under section 87 Cr.P.C. vide order, dated 28.05.2021, by learned Judicial Magistrate Section-30, Lahore. As per the above reproduced closure report of FIA , Red Notices through INTERPOL were twice issued against Umar Farooq Zahoor . The referred two criminal cases i.e. FIRs No.36 & 40 of 202 0 were registered by “State through Federal Investigation Agency (FIA) based on „source report‟ u/s 3 FIA Inquiry & Investigation Rules, 2022 ”. Page-6 W.P. No.4200/2022, Crl. Misc. No.1546/2022 & Crl. Misc. No.987/2023. These criminal cases were investigated by “Syed Ali Mardan” , Inspector FIA , Anti -Corruption Circle (petitioner in Crl. Misc. No.987/2023 and Crl. Misc. No.1546/2022).
CONVERSION OF PETITIONS UNDER SECTION 561 -A CR.P.C. TO PETITIONS UNDER ARTICLE 199 OF THE CONSTITUTION.
9. Vide order, dated 01.02.2024, this Court had fixed the petitions for rehearing as the connected t wo petitions i.e. Crl. Misc. No.987/2023 and Crl. Misc. No.1546/2022 have been filed by Syed Ali Mardan under section 561 -A Cr.P.C. , therefore, the counsel for the petitioner was asked to satisfy this Court regarding maintainability of petitions under section 561-A Cr.P.C. in matters relating to quashment of FIR in light of the judgment rendered by the Supreme Court in the case titled “F.I.A. through its Director General v. Syed Hamid Ali Shah and others” [PLD 2023 SC 265 ]. Learned counsel for the petitioner has argued that this Court is vested with power to convert the Criminal Miscellaneous Petitions into constitutional petitions . He, therefore, made request that the petitions under section 561-A Cr.P.C. be converted and treated as constitutional petitions filed under Article 199 of the Constitution.
10. The august Supreme Court in the case of „ Muhammad Akram v. DCO Rahim Yar Khan and others‟ [2017 SCMR 56] has held that “Courts are sanctuaries of justice, and in exercise of authority to do ex debito justitiae , that is to say remedy a wrong and to suppress a mischief to which a litigant is entitled. No fetters or bar could be placed on the High Court and or this court to convert and treat one type of proceeding into another and proceed to decide the matter either itself provided it has jurisdiction over the lis before it in exercise of another jurisdiction vested in the very court or may remit the lis to the competent authority/forum or court for decision on merits. Courts have been treating and or converting ap peal into revisions and vice versa and Constitution Petitions into appeal or revision and vice versa. Even time consumed pursuing remedy before a wrong forum in Page-7 W.P. No.4200/2022, Crl. Misc. No.1546/2022 & Crl. Misc. No.987/2023. appropriate cases could always be condoned (see Shamsul Haq and others v. Mst. Ghoti and 8 others (1991 SCMR 1135).” Reliance in this regard is also placed on the cases titled “Muhammad Akram v. DCO, Rahim Yar Khan and others” [2017 SCMR 56 ] and “Capital Development Authority, Islamabad through its Chairman v. Khuda Bakhsh and 5 others” [1994 SCMR 771].
11. In light of above principles and law laid down by the Supreme Court and in order to secure the ends of justice , the petitions i.e. Crl. Misc. No.987/2023 and Crl. Misc. No.1546/2022 are converted into constitutional petitions filed under Article 199 of the Constitution and shall be decided accordingly.
FINDINGS ON MERIT.-
12. Keeping in view the peculiar facts and circumstances of the case, the questions which need consideration are as follows.-
(i). Whether the allegations in one FIR can be refuted through registration of another FIR by the accused person against the complainant?
(ii). Whether a second FIR can be registered in respect of offences committed in one transaction or the same occurrence?
(iii). What is duty of the Investigating Officer if he is informed by the accused person that other FIRs have already been registered in respect of offences committed in one transaction or the same occurrence wherein investigations are in progress?
13. Perusal of the FIRs (sought to be quashed) shows that the complainant (Umar Farooq Zahoor) has leveled allegations that the accused persons , in connivance with each other, have managed Page-8 W.P. No.4200/2022, Crl. Misc. No.1546/2022 & Crl. Misc. No.987/2023. registration of FIRs No.36 & 40 of 2020 with FIA on the basis of forged documents. Umar Farooq Zahoor is accused and has been declared as proclaimed offender in FIRs No.36 & 40 of 2020 . He can join investigations, which he has so far not joined. Till date he failed to approach the investigating officer or the court to seek his remedies under the law in FIRs No.36 & 40 of 2020 . Instead of surrendering before the process of law, he preferred to file application before Incharge Police Station Secretariat , Islamabad against complainant/investigating officer of FIR No.36 & 40 of 2020 , whereupon the impugned FIRs (465/2022 & 156/2023 P.S. Secretariat, Islamabad) were registered . It is true that the officer incharge of a Police station is bound under section 154 Cr.P.C. to register a criminal case whenever he receives information of the commission of cognizable offence, however, at the same time other provisions of Cr.P.C. cannot be disregarded . The Incharge Police Station continued with the investigations in the FIRs (sought to be quashed), ignoring the fact that he lacked jurisdiction to interfere with investigations of FIRs No.36 & 40 of 2020. Rather, the Incharge Police Station attempted to maneuver and manipulate the lawful process pending against Umar Farooq Zahoor so as to extend undue favour. He skipped to consider that the matter relating to FIRs No.36 & 40 of 2020 was pending before a competent court at Lahore and before registration of a criminal case with respect to any alleged forged documents stated to be part of record in those criminal cases, order of that court under section 195 Cr.P.C. (prosecution for certain offences relating to documents given in evidence ) was mandatory. It was also not considered by the Incharge Police Station Secretariat that t he allegations leveled in the FIRs (sought to be quashed) could only have been used as defence by Umar Farooq Zahoor in FIRs No.36 & 40 of 2020. Furthermore, Umar Farooq Zahoor was at liberty to join investigations in FIRs No.36 & 40 of 2020 and inform the investigating officer that certain documents forming basis of those criminal cases are forged . However, it is beyond comprehension as to why Umar Page-9 W.P. No.4200/2022, Crl. Misc. No.1546/2022 & Crl. Misc. No.987/2023. Farooq Zahoor did not join investigations in FIRs No.36 & 40 of 2020 and as an alternative attempted to hijack the said investigations through the FIRs (sought to be quashed).
14. It is made clear that the manner in which the Incharge Police Station Secretariat , Islamabad has registered a criminal case would open a flood gate of registering frivolous criminal cases . In every criminal case the accused person, instead of surrendering before the process of law, would get a criminal case registered against the complainant . Resultantly, the complainant of one FIR would be accused in second FIR lodged by the offender. Such a practice would allow the Investigating Officer to exercise power and authority of the judicature and would be passing declarations of the guilt or innocence of citizens. Simultaneously, the police hierarchy dealing with the earlier FIR would be accused of connivance with the complainant and made to face criminal proceedings . The act of registering the impugned FIRs is so bad, that one cannot imagine of the ultimate result it will produce.
15. It is alarming that in both the FIRs , officials of Police Station Secretariat have record that “سائل بالا نے تحریر درخواست بحاضری ” .Despite the fact that the complainant (Umar Farooq Zahoor) is a proclaimed offender, neither officials of Poli ce Station Secretariat nor the Investigating Officer attempted to arrest him so as to face legal process in FIRs No.36 & 40 of 202 0 registered with FIA. The Incharge Police Station Secretariat and other officials failed to perform their duty under section 54 and 59 of Cr.P.C. There is yet another aspect of the matter. The personal attendance of the complainant (Umar Farooq Zahoor) as recorded in the impugned FIRs stands falsified by the report of FIA, which says that “the IBMS (Integrated Boarder Management System) transpires that the complainant (Umar Farooq Zahoor) was abroad at the time of filing his complaint and registration of FIR No.465/2022 ”. It is beyond comprehension as to why the Incharge Police Station Secretariat was so interested in registering the Page-10 W.P. No.4200/2022, Crl. Misc. No.1546/2022 & Crl. Misc. No.987/2023. criminal case s that he allow ed false statement s on his behalf to be recorded in the impugned FIRs.
16. Cr.P.C. provides a complete mechanism from registration of FIR till the acquittal, conviction and execution of sentence . Once an FIR is registered under section 154 Cr.P.C. , the offence is investigated. In case the accused has any defence or evidence that the allegations in the FIR are false, he is at liberty to submit such evidence before the investigating officer or before the court . Even upon conviction, the law provides the convict a right of appeal . The accused person cannot carve out a novel path, deviate from the express provisions of law and make mockery of the law. Similarly, the Incharge Police Station cannot be allowed to exercise power of a court of law and decide fate of a criminal case.
17. In 2018, the Supreme Court of Pakistan in the case titled “Sughran Bibi v. The State” [PLD 2018 SC 595 ] considered the question of registration of second F IR in respect of one occurrence . In the referred case it was observed that the power to investigate is relatable to the offence and is not confined to the circumstances reported to the police through the first information reduced to writing as an FIR. The first information only sets the ball rolling and the investigations are conducted about “the facts and circumstances of the case”, not just those reported by the first informant but including any other information received through any other informant or source. Furthermore, the investigation of a case is not restricted to the version of the incident narrated in the FIR or the allegations leveled therein. Once an FIR is registered then the inves tigating officer embarking upon investigation may not restrict himself to the story narrated or the allegations leveled in the FIR and he may entertain any fresh information becoming available from any other source regarding how the offence was committed a nd by whom it was committed and he may arrive at his own conclusions in that regard. The final report to be submitted under section 173, Cr.P.C. is to be Page-11 W.P. No.4200/2022, Crl. Misc. No.1546/2022 & Crl. Misc. No.987/2023. based upon his final opinion and such opinion is not to be guided by what the first informant had stated or alleged in the FIR. The Supreme Court after discussing in detail its earlier judgments conclusively settled the law that only one criminal case shall be registered in respect of one occurrences/offences committed in one transaction.
18. In the case in hand, FIR No .465/2022 was already registered on 22.10.2022. This FIR was cancelled on 26.09.2023 under Rule 25.7 of Police Rules, 1934 so as to transfer the investigations to FIA. Yet another FIR No.156/2023 on the same allegations was registered on 17.05.2023 by the same complainant against the same accused persons in respect of the same occurrence . This case is a classic example of misuse of authority by the Incharge Police Station Secretariat, Islamabad.
19. The Supreme Court of Pakistan in the case titled “Samiullah Khan Marwat v. Government of Pakistan through Secretary, Establishment, Islamabad and another” [2003 SCMR 1140] has held that “the exercise of powers by the public functionaries in derogation to the direction of la w would amount to disobey the command of law and the Constitution. The concept of administration of justice is not confined only to the judicial system rather every person discharging the functions in relation to the rights of people is bound to act fairly , justly and in accordance with law and if a person holding a public office is found to have proceeded in violation of law or his acts and conduct amounted to misuse his official authority, he should be made answerable to law and should be proceeded agains t for an appropriate action by his superiors ”. The rule of law constitutes the bedrock of governance. When the law stipulates that something has to be done in a particular manner that is how it should be done. And any person who exercises authority must do so in accordance with law. Reliance is placed on the case titled “Federation of Pakistan and another vs. E -Movers (Pvt) Ltd and another” [2022 SCMR 1021 ]. Furthermore, Section 24A of the General Clauses Act, 1897 provides Page-12 W.P. No.4200/2022, Crl. Misc. No.1546/2022 & Crl. Misc. No.987/2023. that “where by or under any enactment, a power to make any order to give any direction is conferred on any authority, office or person such power shall be exercised reasonably, fairly, justly and for the advancement of the purpose of the enactment”.
20. Registration of FIR is an e xercise of statutory authority. Rule 25.1(7) of the Police Rules, 1934 provides that it is the duty of an investigating officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person. Under rule 25.2 if the occurrence of a cognizable…
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