P L D 2010 Supreme Court 969 (PLP)

JAVED IQBAL, J.

This petition for leave to appeal is directed against order dated 23-12-2009 passed by the learned Division Bench of Lahore High Court, Rawalpindi Bench, Rawalpindi in Intra Court Appeal which was dismissed in limine. Facts of the case need not be reiterated as same have been stated elaborately in the order impugned.

2. Syed Zafar Ali Shah, learned ASC entered appearance on behalf of petitioner and urged emphatically that the learned Division Bench has not appreciated the legal and factual aspects of the controversy in its true perspective which resulted in serious miscarriage of justice. In order to substantiate the said contention, it is argued that Intra Court Appeal could not have been dismissed in limine as no alternate efficacious remedy was available and the petitioner could not have been compelled to involve the provisions as enumerated in section 249-A, Cr.P.C. before Area Magistrate as admittedly charge was yet to be framed and cognizance taken by the Court. It is next argued that the contents of challan were altogether different from complaint/F.I.R. which, speaks a volume about concoction and deliberation which went unnoticed. It is urged that trial would be an exercise in futility as there is no probability of conviction due to absolute lack of evidence against the petitioner. It is contended that the orders passed by the learned single Judge in Chambers and the learned Division Bench being illegal are liable to be set aside in the interest of justice and to save the petitioner from agony of the trial for the offences never committed by him.

3. We have carefully examined the contentions as mentioned above in light of relevant provisions of law and record of the case. We have minutely perused the order dated 7-12-2009 passed by the learned single Judge in chambers as well as the order impugned with the eminent assistance of learned ASC on behalf of petitioner. It reveals from the scrutiny of record that initially a writ Petition bearing No.3611/2009 was' filed with the following prayer:-- "It is, therefore, respectfully prayed that the proceedings pending in the Court of Mr. Amir Munir Magistrate/Civil Judge, Islamabad titled "State vs. Muhammad Abbasi" may be declared null and void and quashed."

4. The above Writ Petition was dismissed by learned single Judge in chambers vide order dated 7-12-2009 which was assailed by means of Intra Court Appeal which has been dismissed vide order impugned. The prime contention of the learned ASC seems to be that no incriminating material worth the name has come on record to substantiate the accusation made in F.I.R. No.102 dated 23-6-2009 got registered under sections 427, 379, 506, 447 and 511 P.P.C. read with section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and the petitioner was found innocent by the Superintendent of Police who investigated the case and recommended his discharge but amazingly challan was submitted before Area Magistrate under sections 506, 447 P.P.C. which could not have been done as no evidence could be collected against the petitioner. The prime contention of learned ASC as mentioned hereinabove has been made in oblivion of the fact that such like controversy could not have been resolved in exercise of constitutional jurisdiction. The invocation of Constitutional jurisdiction in such like cases cannot be encouraged for the simple reason that an alternate and efficacious remedy is available in the shape of section 249-A, Cr.P.C. which can be invoked at any point of time after taking cognizance by Magistrate pursuant to the provisions as enumerated in section 190(1)(b), Cr.P.C. A similar proposition was decided by this Court in case titled State v. Ashiq Ali Bhutto 1993 SCMR 523 and the provisions as enumerated in sections 249-A, Cr.P.C. and 265-K, Cr.P.C. have been examined with the following observations:- "It is obvious that the legislature in its wisdom did not leave the question of the recording of the evidence as a condition before taking action under either of the provisions. The use of the expression "at any stage" of the case is indicative enough of the intention that any such stage could be the very initial stage, after taking cognizance or it could be a middle stage after recording some proceedings and/or even, it would be later stage as well. After both the provisions were thoroughly examined in the light of the order of grant of leave to appeal learned counsel ultimately could not press the argument that the recording of the prosecution evidence was a condition precedent for acquitting an accused either under section 249-A, Cr.P.C. or under section 265-K, Cr.P.C. That being so, this appeal merits to be dismissed". (Emphasis provided).

5. It hardly needs any elaboration that Article 199 of the Constitution of Islamic Republic of Pakistan (hereinafter referred to as the Constitution) "cannot be construed to vest in the High Court unrestricted powers to administer supposed equity not based on a justiciable foundation. Therefore, the High Court cannot interfere under this Article unless it be satisfied that some illegal wrong has been inflicted or is about to be inflicted on the Petitioner" (Siddiq Ahmed v. Estate Officer, Government of Pakistan PLD 1957 Karachi 887, Siddiq Ahmad v. Estate Officer, Government of Pakistan PLR 1958 (1) W.P. 711, Jeshingbhai v. Emperor AIR 1950 Bom.363, Bagram v. State of Bihar AIR 1950 Pat.387, Harnam Singh v. The State of Punjab AIR 1953 Punj. 176, Badri Prasad v. President, Dist. Board, Mirzapur AIR 1952 All 681, R.R. Ranade v. State of V.P. AIR 1952 Him Pra 35, In re V. Nagalingam Servai and others AIR 1952 Mad.834, S.T.O. Co. v. State of M.P. AIR 1952 Nag.353, Ramani Kanta v. Gauhati University AIR 1951 Assam 163, Gopeshwar Prasad v. State of Bihar AIR 1951 Pat.570). It is also well settled by now that "extraordinary jurisdiction of High Court is available only after all other legal remedies are exhausted. Constitutional jurisdiction of High Court, would be declined where the petitioner has not exhausted all remedies available to him before filing of constitutional petition. In another case it was held that relief in writ jurisdiction cannot be granted merely for academic purpose where aggrieved party can approach specified authority for effective redress". Quaid Cap House v. Sect. Divl. Evacuee Trust (PLD 1980 Kar. 261), Pakistan Metal Industries v. Asst. Collector C.E. and Customs 1990 CLC 1002, M/s. Shahid Agency v. Collector Customs (Appr.)1989 CLC 1938, Amar Lal v. Board of Intermediate & Secondary Ed. (1986 CLC 1848), Wazir Ahmad v. S.H.O. P. Station Mehboob Kalhoro 1990 PCr.LJ 2006, Allah Dost v. Muhammad Alam (PLD 1987 Quetta 235), Allah Bakhsh and another v. Muhammad Ismail and others 1987 SCMR 810), Ghulam Rasool v. Returning Officer PLD 1990 PCr.LJ 2006, Ghulam Rasool v. Returning Officer PLD 1985 Kar.126, 166, Golden Industries Ltd. v. Province of Sindh (PLD 1983 Kar.76), Lipton (Pakistan Ltd. Karachi v. Government of Sindh (PLD 1977 Kar. 714), Malik Abdur Rahim v. Anayatullah Khan (NLR 1992 CLJ 1). In our view where alternate remedy is more convenient, beneficial and likely to set the controversy at naught completely, jurisdiction under Article 199 cannot be exercised. In this regard, reference can be made to the dictum laid down in the following cases:-- Riaz Ahmad v. Inspector of Police, Baseerpur (1991 PCr.LJ 6), Abdul Hamid Khan Ackakzai v. Election Commissioner (1989 CLC 1833), Abdul Razzaq & Co. v. Asstt. Collector of Customs (1986 CLC 2559), Standard Vacuum Oil Co. v. Trustees. (PLD 1961 Dacca 289), Lutf-un-Nisa v. Deputy Commr. Dacca(PLD 1964 Dacca 132), PLR 1963 Dacca 944, S.M.Wali Ahmed Chowdhury v. Mahfuzal Haq Chowdhury (PLD 1957 Dacca 209) and S.M. Wali Ahmed v. Mahfuzal Haq (8 DLR 429).

6. It is however to be kept in view that "where impugned action or order is challenged on the ground of its being wholly without lawful authority, completely lacking authority for adjudication; proved mala fides; patent flouting of law, by conducting in an oppressive, capricious or unjust manner; the Constitutional jurisdiction of High Court can be invoked even directly without resorting to alternate remedy available to the petitioner". Atta Muhammad v. Assistant Political Agent (PLD 1990 Quetta 30). "The words "adequate remedy" cannot be an efficacious, convenient, beneficial, effective and speedy remedy. It should be equally inexpensive and expeditious. To effectively bar the jurisdiction of the High Court under this Article the remedy available under the law must be able to accomplish the same purpose which is sought to be achieved through a petition under Art.

199. The other remedy in order to be adequate must be equally convenient, beneficial and effective. The relief afforded by the ordinary law must not be less efficacious, more expensive and cumbersome to achieve as compared to that provided under the article. This depends on the circumstances of each case", Muhammad Naseem v. N.-W.F.P. (1990 CLC 1693), Khadim Hussain v. District Council (PLD 1976 Lah. 1044), Gul Ahmed Textile Mills Ltd. v. Collector of Customs (Appraisement) 1990 MLD 126, Pak. Metal Industries v. Asstt. Collector (1990 CLC 1202), Allah Wasaya v. Tehsil/A.C. Ist Grade (1981 CLC 1202), Syed Riaz Hussain Zaidi v. Muhammad Iqbal (PLD 1981 Lah. 215, Abdul Hafeez v. Chairman, Municipal Corporation (PLD 1967 Lah. 1251).

7. It is bounden duty of the learned High Court to examine the question as to whether the alternate remedy is adequate and efficacious remedy by considering the merits of each case and further to dilate upon the question as to whether such remedy would be more efficacious, beneficial or it would cause hardship to the petitioner. In this regard reference can be made to the case-law enunciated in a Full Bench decision of the Lahore High Court wherein the tests to be applied to determine the adequacy of the relief have been clearly stated in the following terms: "(i) If the relief available through the alternative remedy in its nature or extent is not what is necessary to give the requisite relief, the alternative remedy is not an "other adequate remedy" within the meaning of Article 199. (ii) If the relief available through the alternative remedy in its nature and extent, is what is necessary to give the requisite relief, the `adequacy' of the alternative remedy must further be judged, with reference to a comparison of the speed, expense or convenience of obtaining that relief through the alternative remedy, with the speed, expense or convenience of obtaining it under Article

199. But in making this comparison those factors must not be taken into account which would themselves alter if the remedy under Article 199 were used as a substitute for the other remedy. (iii) In practice the following steps may be taken:- (a) Formulate the grievance in the given case, as a generalized category; (b) Formulate the relief that is necessary to redress that category of grievance; (c) See if the law has prescribed any remedy that can redress that category of grievance in that way and to the required extent; (d) If such a remedy is prescribed, the law contemplates that resort must be had to that remedy; (e) If it appears that the machinery established for the purposes of that remedy is not functioning properly, the correct step to take will be a step that is calculated to ensure, as far as lies in the power of the Court, that that machinery begins to function as it should. It would not be correct to take over the function of that machinery. If the function of another organ is taken over, that other organ will atrophy, and the organ that takes over, will break down under the strain; (f) If there is no other remedy that can redress that category of grievance in that way and to the required extent, or if there is such a remedy but conditions are attached to it which for a particular category of cases, would neutralize or defeat it so as to deprive it of its substance, the Court should give the requisite relief under article 199; (g) If there is such other remedy, but there is something so special in the circumstance of a given case that the other remedy which generally adequate, to the relief required for that category of grievance, is not adequate to the relief that is essential in the very special category to which that case belongs, the Court should give the required relief under Article 199" Mehmoob Ali Malik v. Province of West Pakistan (PLD 1963 Lahore

575. Majibur Rehman v. Province of East Pakistan (15 DLR (WP) 129)."

8. We have examined the petition on the touchstone of the criterion as mentioned hereinafter. It is worth mentioning that challan has already been submitted and cognizance taken by the learned Court and in this view of the matter the alternate as provided under section 249-A, Cr.P.C. would be more efficacious, appropriate and beneficial. It may not be out of place to mention here that question of guilt or innocence cannot be decided by the learned High Court in exercise of Constitutional jurisdiction as such a function fall within the jurisdictional domain of Court concerned by whom the entire evidence is to be scrutinized which cannot be done in exercise of Constitutional jurisdiction.

9. There is no cavil to the proposition that the opinion of police cannot be considered as sacrosanct and ultimately it is for the Court concerned to decide the question of guilt or innocence of the accused in accordance with law. The invocation of constitutional jurisdiction where alternate remedy is provided which is convenient and beneficial cannot be made.

10. The upshot of the above discussion is that order impugned being well based does not warrant interference and accordingly the petition being devoid of merit is dismissed. M.H./M-53/S Petition dismissed.