2002 PLP 1003 (CLC)

Nazar Khan v. The State 1991 PCr.LJ 1709; Rahim alias Rehmak v. The State 1999 PCr.LJ 1068 Muhammad Rashid's case 2000 MLD 1830; Riffat Askari v. The State pLD 1997 Lah. 285 and Pir Sabir Shah v. Shah Muhammad Khan PLD 1995 SC 66 ref. Muhammad Shah Gul for Petitioner. Mian Muzaffar Hussain for Respondent. The petitioner, by way of this Constitutional petition, has challenged-the vires of order of the respondent dated 7-5-2001 whereby he imposed a fine of Rs.5,000 on the petitioner. Learned counsel of the petitioner submits that respondent No. 1 had assumed the jurisdiction illegally. The ingredients of section 34 of the L.D.A. Act are not attracted in the present case because the petitioner concern has neither damaged nor acquired or converted the property vesting in the Authority to its own use. He further submits that the petitioner concern was in no way responsible for the area outside the premises of the shop and because the respondent verbally informed the Manager that he was being punished for allowing vehicles to be parked outside the shop. He further urges that there is no signboard which indicates that people cannot park their vehicles outside the petitioner concern's shop as the respondent L.D.A. Authorities had not declared the same "No Parking Zone". He further urges that the respondent convicted the petitioner in violation of the mandatory provisions of law and without any show-cause notice to the petitioner. Therefore, the judgment is not sustainable in the eyes of law. He further submits that respondent No.1 convicted the petitioner in violation of law laid down by the superior Courts. 1n support of his contention he relied upon the following judgments:-- (1) Nazar Khan v. The State 1991 PCr.LJ 1709; (2) Rahim alias Rehmak v. The State 1999 PCr.LJ 1068. He further. submits that respondents admitted in reply of paras. 1 and 9 of the report and parawise comments that the respondents have successfully educated the citizens through penal action. This fact is sufficient to prove that respondent No. 1 had passed the impugned order without applying his independent mind. Learned counsel of the respondents submits that the petitioner has alternative remedy to file a revision petition before the Sessions Judge, Lahore under the provisions of law. Therefore, writ petition is not maintainable. He further submits that the petitioner confessed the commission of offence therefore, the contention of the learned counsel of the petitioner that respondent had passed the order in violation of the principles of natural justice is not sustainable in the eyes of law. He further submits that impugned order was passed .by the respondent in accordance with law by virtue of section 242, Cr.P.C. as the petitioner confessed the commission of offence. He further submits that ingredients of section 34 of L.D.A. Act are applicable in all respects.

2. I have given my anxious consideration to the contentions of he learned counsel of the parties and perused the record myself. The petitioner has alternative remedy against the order of the respondent as is held by this Court in Muhammad Rashid's ease 2000 MLD 1830, The relevant observation is as follows:

"The petitioner if aggrieved of the impugned judgment may avail the provisions contained in section 412, Cr.P.C. to impugn the extent and illegality of sentence or in alternate avail the revisional jurisdiction, if so advised, if the impugned judgment was allegedly without jurisdiction, perverse or illegal. Since equally an effective and efficacious remedy is available to the petitioner under the ordinary law of the land, therefore, the petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is not maintainable. It is accordingly dismissed in limine."

3. The judgments cited by the learned counsel of the petitioner are distinguished on facts and law as the question of maintainability was not considered in Nazar Khan's case (supra) whereas the case of Rahim alias Rehmak has no relevance as the same was decided in criminal appeal. The petitioner did not avail any of the aforesaid remedies and filed this writ petition. The petitioner has filed this writ petition under Article 199 of the Constitution which imposes certain limits for entertaining the writ petition. The relevant sub-Article (1) of Article 199 is reproduced hereunder:-- "Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law." The aforesaid article reveals where it is open to an aggrieved person to move any other forum or tribunal for his remedy in the manner prescribed in a Statute, the High Court will not by entertaining petition under Article 199(1) permit the machinery provided in a statute to be by passed. It is primarily discretion of the Court to grant or refuse the relief A if it is satisfied that an aggrieved party have an alternative remedy elsewhere coupled with the principle that relief under Article 199 is not to be provided where the alternative remedy exists is now well-founded unless there are any exceptional reasons warranting exercise of extraordinary powers under the aforesaid Article. It is pertinent to mention here that according to the petitioner, the petitioner did not give any confessional statement before the respondent whereas the respondent took a stand in report and parawise comments in reply to para.9 that petitioner was convicted and sentenced on his confessional statement. This fact brings the case in the area of disputed question of fact and this Court has no jurisdiction to resolve the disputed question of fact in Constitutional jurisdiction as per principle laid down by the Honourable Supreme Court in Muhammad Younas Khan's case 1993 SCMR

618. As mentioned above the petitioner has alternative .remedy, therefore, writ petition is not maintainable. In arriving to this conclusion I am fortified by the following judgments:-- (1) Riffat Askari v. The State PLD 1997 Lah. 285; (2) Pir Sabir - Shah v. Shah Muhammad Khan PLD 1995 SC

66. In view of what has been discussed above, this petition is not maintainable. The petitioner is well within his right to avail the alternative remedy under the law. With these observations the writ petition is disposed of. Q.M.H./M.A.K./S-323/L Order accordingly.