ORDER-SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA  

Crl. Misc. Appln. No. S- 330 of 2017.

Date of hearing

Order with signature of Judge

 07.05.2018.

1.       For orders on office objections.

2.       For hearing of case.

          Mr. Abdul Rehman A. Bhutto, Advocate for applicant.

          Mr. Sharafuddin Kanhar, A.P.G.

          Mr. Safdar Ali Ghouri, Advocate files vakalatnama on behalf of proposed accused No.1, 2 and 4.

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AMJAD ALI SAHITO, J: Through instant application, applicant Tohal Khan Chandio has impugned an order dated 25.09.2017, passed by  learned II-Additional Sessions Judge/Justice of Peace, Kamber, whereby his application u/s.22-A & 22-B Cr.PC was dismissed.

2.       It is alleged by the applicant in his application that the proposed accused persons committed murder of his brother Himath Ali and then went by taking away his 150-goats besides making aerial firing to create harassment, for which he appeared at police station but his FIR was not registered by the police. Resulting whereof, his application u/s.22-A & 22-B Cr.PC was dismissed by learned II-Additional Sessions Judge/Justice of Peace, Kamber.

3.       Heard learned counsel for the applicant, learned counsel for the proposed accused, learned A.P.G appearing for the State and perused the record. 

4.       Learned Counsel for the applicant contended that learned Justice of Peace has erred in law and exercised discretion in favor of the proposed accused; that the contents of application filed by applicant u/s.22-A & 22-B Cr.PC, prima facie discloses the commission of a cognizable offence and as per provisions of Section 154 Cr.PC, the Officer Incharge of the Police Station is bound by the

law to register the FIR and he has no power to refuse. Lastly, he prayed that the application of the applicant be allowed and the respondent No.2 be directed to register FIR of the applicant at per his verbatim.

5.       On the other hand, learned Advocate for the proposed accused and learned A.P.G. supported the impugned order by submitting that the FIR in respect of same offence was already registered by the police vide Crime No.12/2017 of P.S Gaibidero, for offence punishable u/s.302, 201, 34 PPC and the applicant now intends to register the second F.I.R with malafide intention and ulterior motives.

6.       It is admitted fact that, the F.I.R in respect of murder of deceased Himath Ali has already been registered by the police against accused Rustam Ali Chandio and the applicant intends to register second F.I.R against other set of accused persons, who allegedly are already inimical towards him. The version of the applicant has also been negated by the concerned police with regard to happening of the alleged incident in a fashion as disclosed by the applicant in his application. Moreover, the learned Justice of Peace has set the applicant at liberty to file direct complaint, if so advised. 

7.       In the case of Habibullah v. Political Assistant, Dera Ghazi Khan and others (2005 SCMR-951), the Hon’ble Supreme Court of Pakistan has 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 adequately be redressed while considering the fact that respondent/SHO, 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 SHO 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 the 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 call for exercise of judicial restraint in turning down the request for registration of FIR in view of the conduct of the party besides considering that adequate remedy in the form of private complaint being available to the petitioner.

8.       In view of the above circumstances and the dictum laid down by the Hon’ble Supreme Court of Pakistan in a case, cited supra, I am of the humble view that it would be appropriate for the applicant to exhaust such remedy by filing a direct complaint before the Court having jurisdiction, where he could lead the entire evidence himself and his grievance could adequately be redressed.

9.       With above observations, the application in hand being      merit-less is dismissed accordingly.

J U D G E

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