IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD
C.P No.D-3299 of 2016
PRESENT:
Mr. Justice Naimatullah Phulpoto
Mr. Justice Rasheed Ahmed Soomro
For Katcha Peshi.
24.02.2017.
Mr.
Wahid Bux Aajiz Laghari, Advocate for petitioners.
M/s Allah Bachayo Soomro, A.A.G and
Syed Meeral Shah D.P.G. for the State.
-.-.-.
O R D E R
RASHEED AHMED
SOOMRO,J:- Petitioner Bacho
Laghari has called in question order dated 22.11.2016 passed by learned 2nd Additional
Sessions Judge/Ex-Officio Justice of Peace, Tando Muhammad Khan in Criminal
Miscellaneous Application No. 253/2016 on application under Section 22-A &
B Cr.P.C, whereby application submitted for seeking directions to the S.H.O for
registration of the F.I.R. has been dismissed.
Notices
were issued to the A.A.G as well as A.P.G.
Learned
Counsel for the petitioner submits that S.H.O was duty bound to register the
F.I.R. as cognizable offence has been committed by the proposed accused SIP Sher
Zaman, I/C DIB Tando Muhammad Khan, 2. ASI Raja Shah, I/C 15 Madadgar Tando Muhammad Khan and 3. Fayyaz Ali
Bhatti posted in DIB Tando Muhammad Khan. It is argued that S.H.O concerned was
duty bound to register the F.I.R. but he has failed to discharge his duty.
Learned
D.P.G argued that learned 2nd Additional Sessions Judge/Ex-Officio
Justice of Peace has assigned sound reasons for dismissal of the application.
He also submitted that alternate remedy of filing the Direct Complaint is
available to the petitioner. In support of his contention, he has relied upon
the case reported as 2005 SCMR 951, HABIBULLAH versus POLITICAL ASSISTANT, DERA
GHAZI KHAN and others.
After
hearing the learned Counsel for the parties we have carefully perused the
impugned order dated 22.11.2016. Learned 2nd Additional Sessions
Judge/Ex-Officio Justice of Peace, Tando Muhammad Khan has dismissed the
application filed by the petitioner mainly for the following reasons:-
“ It is
observed that this application has been filed in order to save skin from the
above said cases registered against his son and his brother Muhammad Ismail,
who are nominated in above FIRs.
It has been
held in the case of Jamil Ahmed Butt and another Vs.
The State through Prosecutor-General Sindh, and 2-others, reported in 2014
P.Cr.L.J 1093 that;
“There are
instance of misuse of provisions of section 22-A CrPC
and, therefore, it is the duty of the court that such misuse should be taken
care of and such application should not be lightly entertain in a mechanical
manner for direction to the police to register a statement of complainant and
start prosecuting the alleged accused persons. In forming this view, I find
support from the judgment reported as Imtiaz Ahmed Cheema
V. SHO , Police station Dharki, Ghotki (2010 YLR
189). In this case his Lordship Mr. Justice Amir Hani Muslim (as he then was
judge of this court) has held as follows:-
“The provision of section
22-A Cr.P.C have been misused in a number of cases. The wisdom of
legislature was not that any person who in discharging of duties takes an
action against the accused would be subjected to harassment by invoking
provision, of section 22-A Cr.P.C. The courts in mechanical manner should not
allow application under section 22-A & B and should apply its mind as to
whether the applicant has approached the court with clean hands or it is
tainted with malice. Unless such practice is discharged, it would have
far-reaching effect on the police officials who in discharge of duties take
actions against them. The law has to be interpreted in a manner that its
protection extends to everyone. I am, therefore, of the opinion that order of
the Sessions Judge was passed in mechanical manner and the applicant
approaching the Sessions Judge. As per the record reflects
that it was tainted with malice”.
Keeping in
view above discussion, the manner and nature of the offence shown in above said
alleged offence, gets inference of malice as such, application has been filed
in order to save skin from above said case registered against his son namely Punooh Laghari, he was/is nominated in number of above
FIRs, in this context, I am of the view that all the powers vested authority
for dispensation of justice the issuance of direction for registration of case
would be an exercise in aid of justice but are never meant to be exercised in
aid of injustice. Courts are never supposed to shut their eyes from other
aspect of the case and to pass orders for registration of case on false report
of any complaint, hence this application is motivated and outcome of malice, I therefore, find no merit
in the application same is hereby dismissed.”
Learned D.P.G argued that impugned order is based upon
sound reasons, he has relied upon the case of HABIBULLAH versus POLITICAL
ASSISTANT, DERA GHAZI KHAN and others (2005 SCMR 951) in which the Honourable
Supreme Court has held as under:-
“The petitioner could not point out
any legal or factual infirmity with the impugned order so also could not
controvert what has been stated in the report and para-wise
comments furnished by respondent No.1. The High Court was under no obligation
to issue direction for registration of F.I.R as the matter with regard to the
issuance of direction for registration of case entirely rests with the Court
and we have not been pointed out that the discretion of refusing to issue such
direction was improperly exercised. The impugned judgment has also not shut the
door of the petitioner to initiate criminal proceedings by lodging complaint
and this Court normally would not interfere in the exercise of discretionary
Constitutional jurisdiction of High Court except in case of grave injustice. It
may be observed that filing of private complaint could provide an equal
adequate relief to the petitioner because he could lead the entire evidence
himself before the trial Court and his grievance could be adequately redressed
considering also the fact that respondent/S.H.O., who in the report and para-wise
comments has mentioned adverse to the petitioner’s case, therefore, it could
not be expected from the concerned S.H.O. that he would carry independent and
impartial investigation in the case. It may be stated that under the provisions
of Article 199 of the Constitution of Islamic Republic of Pakistan it was not
obligatory for the High Court to issue writ in each case irrespective of the
facts and circumstances which could fall for exercise of judicial restraint in
turning down the request for registration of F.I.R. in view of the conduct of
the party besides considering that adequate remedy in the form of private
complaint being available to the petitioner. Reference may be made to decision
of this Court (1) Muhammad Ijaz v. S.H.O Police
station, Rajana, Faisalabad 1979 SCMR 490 and other
reported case (ii) Muhammad Hassan v. S.S.P., Faisalabad and others 1992 PcR.lj 2307 (III) Muhammad Suleman
v. Station House Officer, Police Station Civil Lines, Gujranwala 1994 PCr.LJ 2416 (iv) Zafar Iqbal and another v.
Inspector-General of Police and others 1994 MLD 374 (v) Haji Muhammad Yaqoob v. S.P. Vehari and others
1997 PCr.LJ 876 (vi) Altaf Hussain v. Government of
Sindh through Home Secretary Government of Sindh and another PLD 1997 Kar. 600 (vii) Muhammad Tufail alias Yaseen
v. D.S.P. Pattoki and others 1998 PCr.LJ
1521(viii) Dr. Kashir Rahim v. S.P. Multan and others
1998 MLD 495, and (ix) Javed Tariq Khan v. Ahmed Raza Khan and others 1999 MLD
3230.”
From the
perusal of the petition it transpired that petitioner seeks registration of the
F.I.R. against the police officials who had already refused the petitioner to
register his F.I.R. and apparently petitioner is aggrieved by police. In the
case of Habibullah Supra cited by learned D.P.G it is held that adequate remedy
of filing the direct complaint is available to the petitioner. Therefore, for
above stated reasons we hold that this is not a fit case to issue directions to
the S.H.O P.S Tando Muhammad Khan to record statement of the petitioner under
Section 154 Cr.P.C.
Therefore,
petition is dismissed for the above reasons. However, petitioner would be at
liberty to file the direct complaint if advised so.
JUDGE
JUDGE
Ali Haider