IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
C.P No. S – 3495 of 2014
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Date |
Order with signature of Judge |
Date of hearing : 11-09-2015
Mr. Agha Ather Hussain Pathan, learned A.A.G.
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ORDER
SHAHNAWAZ TARIQ,J:- Through the captioned Constitutional petition, petitioner Manthar has invoked the jurisdiction under Article 199 of Constitution of Pakistan and sought following reliefs:-
a) To direct the respondents No.3 to 6 to return the said property/articles robbed by them from the petitioner and also restore the cattles to the petitioner without any delay and charges.
b) To declare that the act of the respondents No.3 to 9 is illegal, unlawful and without any jurisdiction.
c) To direct the respondent No.4 to register the F.I.R against the respondents No.2 to 9 and 60/70 unknown police officials as they had committed the cognizable offence and respondent No.2 may be directed to handover the investigation to any other honest police officer for investigation of the above said incident.
d) To direct the respondents No.3 to 9 not to create havoc and harassment against the petitioner and his family members without due course of law.
e) To direct the respondents No.3 to 5 to provide the legal and lawful protection to the petitioner and his family members according to law.
2. The relevant facts spelt out from instant petition are that on 15.11.2014, respondent No.3 DSP Pano Akil, respondent No.4 SHO P.S Raza Goth, respondent No.5 along with 60/70 police officials and with so many Tractor Trollies raided at the village of petitioner and forcibly entered in the village of Daud Indhar and beated women folk and demolished the Kacha/Paka houses including petitioner’s house and forcibly taken away household articles viz 5 cots, 10 rilyon, 3 razeyan, 2 tola gold ornaments, 70 mounds wheat, 30 bags of engro urea, 100 litters diesel, one beco machine, seeds of wheat 50 mounds and cash of Rs.40,000/- from the house of petitioner. Respondents No.3 to 9 also taken away 3 buffaloes, 30 goats and 2 cows of petitioner. It is further averred that petitioner along with his witnesses enquired from respondents that why they have raided their houses and respondents disclosed that villagers have occupied the land of forest. Such incident was published in daily newspapers on 16.11.2014. Subsequently, petitioner along with witnesses approached respondents No.3 to 6 and requested to return the above mentioned articles but they flatly refused to return the same. Petitioner and other villagers are residing in their houses since forefathers but respondents did not issue a single notice to the petitioner and other villagers to vacate the lands of Forest Department, therefore, action initiated by respondents No.3 to 9 is illegal, improper and ab initio void.
3. Notices were issued to the respondents and AAG Sindh and in response, respondents made their appearance in Court and filed their statements and vehemently denied the allegations leveled by petitioner being false and fabricated. Respondent No.4, SHO Raza Goth has categorically stated that on 09.10.2014, complainant Sanaullah Qazi, I/C Forest Guard Panhwari, taluka Pano Akil appeared at PS Raza Goth along with Range Forest Officer of tauka Pano Akil and Rohri in injured condition and lodged FIR No.11 of 2014, U/s 353, 379, 337-F(i), 504, 148 and 149 PPC against accused namely Abdul Haleem, Daud, Sakhwan, Shah Ali and Ali Dur (close relatives of petitioner). ASI Shah Muhammad Mirani of PS Raza Goth investigated said FIR and after usual investigation, Challan was submitted in the Court law vide charge sheet No.8 of 2014 on 22.10.2014. It is further averred that on 15.11.2014, Divisional Forest Officer, Sukkur namely Iftikhar Arain along with sub-ordinate staff appeared at PS Raza Goth in compliance of order dated 05.11.2014 passed in CP No.D-4135 of 2012, by High Court of Sindh, Karachi, to remove the illegal encroachment from lands of Forest Department from the local people of Indhar community at Panhwari and DFO demanded security to visit the forest land, so respondent No.4 arranged police staff to ensure the security of DFO, who after visiting forest lands proceeded to Sukkur. Neither official respondents nor their staff had snatched or robbed the household articles, cash and cattle of petitioner and other villagers during visit of DFO. Petitioner has filed instant petitioner with malafide intention to put pressure upon the official respondents not to pursue their case and protect their illegal possession over the forest lands.
4. Divisional Forest Office, Afforestation Division, Sukkur, namely Iftikhar Arain filed his statement and denied the allegations leveled by the petitioner and stated that in compliance of the orders of High Court of Sindh at Karachi dated 05.11.2014,passed in Constitution Petition No.D-4135 of 2012 filed by United Human Rights Commission of Pakistan v. Province of Sindh and others, and order dated 10.03.2011 passed in Constitution Petition No.1666 of 2010, an operation against the forest encroachers was carried out on 15.11.2014 along with Police Department, District Administration, Sukkur and local media persons. Public Vigilance Committee was re-constituted by the learned District & Sessions Judge, Sukkur, vide letter No.Admn/D & SJ/6207/2014, dated 02.05.2014, for removal of encroachment from the forest lands. FIR No.11 of 2014, was lodged on 09.10.2014 at PS Raza Goth against the offenders. Press clippings of the operation carried out against the offenders are very much clear that no article was taken away by the respondents during such operation. All the encroachers were served with notices and such copies are also available on record. Direct complaint under Forest Act, 1927, was also filed in the Court of Judicial Magistrate against the encroachers, hence petitioner has approached this Court with malfide intention.
5. After hearing arguments of the parties, this Court as an indulgence vide order dated 04.12.2014, directed SSP, Sukkur to conduct inquiry regarding the allegations leveled by the petitioner against the official respondents No.3 to 9 and submit his report to this Court within 30 days. In compliance with said order, ASP SITE Muhammad Asim conducted the inquiry and submitted a comprehensive report in this Court. The perspective part of findings of inquiry report is reproduced as under:-
i) The petitioner did not appear before Enquiry Officer to substantiate his allegations against the respondents which shows that he has no valid proof in support of his allegations.
ii) The raid of respondents No.3 to 5 was conducted on the said date in support of forest officer in compliance of the directions of High Court of Sindh Karachi, vide order dated 05.11.2014 in C.P No-5135 of 2012.
iii) Generally such kind of allegations are leveled against the law enforcers to put them on back foot and prevent them from performing their lawful functions.
iv) This petition seems to be filed just to blackmail and pressurize the Police officers in vengeance of the legal act done by the police.”
6. Learned A.A.G contended that petitioner has concealed the actual facts and has filed instant petition with ulterior motives and during inquiry proceedings, he has failed to contradict the statements filed by the official respondents.
7. It is significant to mention that the petitioner neither appeared before the Enquiry Officer nor produced any solid material to substantiate his allegations leveled against the respondents. Indeed, respondents No.3 to 5 (Police Officers) had provided adequate security and accompanied with Forest Officers in compliance with direction issued by High Court of Sindh, Karachi vide order dated 05-11-2014 in C.P No.5135 of 2012.
8. It is well settled that the Constitutional jurisdiction under article 199 of Constitution of Pakistan, 1973, is purely discretionary and discretion cannot be exercised as a matter of course but it is to be exercised with great care and caution particularly when there are claims and counter claims with denial pleaded by the parties and allegations leveled by petitioner involve the factual controversy, which could not be resolved without recording evidence. The relief claimed by petitioner through instant petitioner is beyond the scope and ambit of Article 199 of Constitution, 1973,hence this Court has no jurisdiction to entertain the same. Reliance is placed on the case of Rizwanullah v Registrar/President, Cooperative Societies, N.W.F.P., Peshawar and 3 others (P L D 2003 Peshawar 203).
9. Considering the above facts and circumstances, the very purpose of conducting the enquiry regarding the allegations of robbery of cash, household articles and cattle of the petitioner, has been achieved. Petitioner and his counsel remained absent from the Court on several dates and there is no intimation regarding their absence for today. Consequently, instant matter is disposed of being devoid of any legal substance and in terms of enquiry report submitted by SSP Sukkur.
Judge
Abdul Salam/P