1999 PLP 3230 (MLD)

SAEED-UR-REHMAN FARRUKH, J.

We propose to dispose of the following three Intra-Court Appeals as common questions of law and facts arise therein, between the same parties:-- (1) I.-C.A. 238 of 1997 in Writ Petition No. 14822 of 1996 titled "Javed Tariq Khan v. Col. Ahmad Raza Khan, etc." (2) I.-C.A. No. 239 of 1997 in Writ Petition No. 10423 of 1996 titled "laved Tariq Khan v. Col. Ahmad Raza Khan, etc." (3) I.-C.A. 240 of 1997 in Writ Petition No. 14236 of 1997 titled Javed Tariq Khan v. Col. Ahmad Raza Khan, etc."

2. The learned Single Judge allowed the above-noted writ petitions through identical order in each case, by issuing a direction to the S.H.O., respondent No. 2 herein to register criminal case, on the complaint of respondent No. 1, in respect of the occurrence alleged therein.

3. The bone of contention is Plot No. B-42-1/1, Lahore Cantt. Cooperative Housing Society. Javed Tariq appellant is brother of Miss Wasim Khalida Khan while Col. Ahmad Raza respondent No. 1 is attorney of Mr. Yasmin Ashraf. Writ Petition No. 16379 of 1995 about the plot is pending before this Court. Three Petitions leave to appeal (346-L, 575-L and 506-L of 1997) are pending before Supreme Court of Pakistan and the same are to be listed for hearing, as per orders, after the decision of the above writ petition. Respondent No. 1 had also moved a contempt application before August Supreme Court (Crl. Org. No. 3-L of 1998), which was withdrawn by him.

4. It is in the above background of litigation that respondent No. 1 filed the three successive writ petitions for seeking the registration of criminal cases. The occurrence as alleged in W.P. 14822 of 1996, in brief, was that on 8/9th August, 1996, Javed Tariq appellant alongwith 40 persons forcibly entered the house of respondent No. 1 and fired shots with fire-arms with a view to commit decoity. Call was made to the emergency police who rushed to the spot and saw the armed persons present there and yet no case was registered. In Writ Petition No. 10423 of 1996 it was alleged by respondent No. 1 that appellant Javed Tariq entered his house alongwith 5 persons and pulled out rifle, threatening to fire at him (time and date of occurrence not mentioned). Allegedly, complaint in writing was made but case was not registered. In the third writ petition (W.P. 14236 of 1996) it was alleged by respondent No. 1 that appellant Javed Tariq alongwith unknown persons forcibly entered his house and gave threats to him. Allegedly, emergency police was summoned who saw the witnesses present at spot and yet no case was registered. All the three writ petitions were allowed, as mentioned above, by directing registration of cases. Hence, these appeals.

5. It is contended by Mr. Ijaz Hussain Batalvi, Advocate, learned counsel for the appellant that no occurrence, whatsoever, ever happened and the writ were filed by respondent No. 1 levelling allegations of almost similar nature, one after the other, out of sheer malice solely with a view to pressurise the appellant so as to take undue advantage in the litigation about the title/rights over the plot. It is submitted that the learned Single Judge was pleased to order the registration of cases, without perusing the record of the writ petitions and the proceedings taken therein earlier. He has pointed out that:-- (a) In Writ Petition No. 14822 of 1996 Senior Superintendent of Police was directed on 25-8-1996 to submit report and para-wise comments. The S. S. P. reported that he directed S.P. Cantt. Division, Lahore to submit a report after making a probe into the allegations who submitted that on 8th August, 1996, after receiving emergency phone call from respondent No. 1, police officials of Police Station Defence Area rushed to the spot. Enquiry was made on the application of respondent No. 1 about the alleged occurrence and the same was found to be false and as such filed. This application had been handed over to the police by respondent No. 1, two days after the occurrence. (b) In Writ Petition No. 10423 of 1996, S.H.O., Police Station L C C H S, Lahore Cantt. was directed vide order, dated 23-6-1996 to offer his comments. The comments submitted by S.H.O. gave lie to the allegations of respondent No. 1 about the occurrence alleged in the writ petition. (c) In the third petition (W.P. 14236 of 1996) report and para-wise comments were called, vide order, dated 15-8-1996, from S.H.O., P. S. Defence Area, Lahore. On this S.P. Lahore Cantt. (S.H.O. Police Defence Area) submitted his report that on receiving emergency call from respondent No. 1, police officials reached the spot but did not find any trespasser. He submitted that litigation with regard to the title/possession over the disputed plot was pending adjudication in the High Court and the story of respondent No. 1 was found to be false and baseless after enquiry.

6. According to Mr. Ijaz Hussain Batalvi, Advocate, it was necessary for the learned Single Judge to take into consideration the above material available on the record of the writ petitions but he failed to do so with the result that the impugned orders were rendered liable to the quashed. It is argued, in the light of above facts and the developments taking place in these writ petitions, that on each occasion the police rushed to the spot/made enquiry about the alleged occurrence and every time respondent No. 1 was found to have perjured himself as no cognizable offence was found/detected to have been committed. 6-A. On the contrary, Mr. Muhammad Iqbal, Advocate has argued that no illegality was committed by the learned Single Judge in directing the police to register these cases by performing its statutory duty under section 154, Cr.P.C. to record the statement of the complainant about the occurrence and then to register a criminal case if, prima facie, some cognizable offence was found to have been committed. According to him the local police was in league with the opposite party who was a big business tycoon and, as such, it went out of the way in making preliminary enquiries in the occurrences so as to ward off the possibility of registration of cases.

7. After hearing the learned counsel for the parties and perusal of the record of the writ petitions we are convinced that these appeals merit acceptance.

8. There cannot be any cavil with the proposition propounded on behalf of the respondent about the power/duty of the police to act under section 154, Cr.P.C. However, the question that has arisen for consideration, on determination whereof of the fate of these appeals hinges, is the scope and extent of power of High Court under Article 199 of Constitution of Islamic Republic of Pakistan, 1973 for issuance of a direction to register a criminal case. The language of this provisions make it clear that it is not obligatory for High Court to issue writ in each case, irrespective of its facts/circumstances, which may call for exercise of judicial restraint in turning down the request of the writ petitioner. Conduct of the parties is of considerable importance in determining as to whether discretionary jurisdiction under Article 199 should be exercised or refused.

9. In "Muhammad Hassan v. S.S.P., Faisalabad and 7 others" 1992 P Cr. L J 2307 a similar situation arose when a writ being filed for registration of criminal case, report was called from the police who submitted that the writ petition failed to substantiate the allegations levelled in a written application, hence, case was not registered. It was held that no useful purpose would be served if police was directed to register the case and private complaint, in given circumstances, was considered to be appropriate and more adequate remedy with the result that the writ petition was dismissed. Same view, in similar situation, was taken by this Court in "Abdul Aziz v. S.H.O., and others" 1997 M L D 1270. In Muhammad Shafi's case 1993 Cr. L J 200 writ petition for registration of case was filed. In this case, a judicial enquiry had earlier been held and the accused stood exonerated. It was held that no useful purpose could be served in directing the registration of the case against them as the same was, of necessity, to be investigated by same police officer who, in all probability, was not going to say anything against his colleagues. Tiling of direct complaint in Court was considered to be a better course and more efficacious remedy than the registration of case by the police. A Division Bench of Karachi High Court in Altaf Hussain's case PLD 1997 Kar. 600, held that whenever an adequate remedy in the form of private complaint was available to the petitioner, relief sought through Constitutional jurisdiction for registration of case may be refused. Also see Muhammad Suleman v. S.H.O. 1994 P Cr. L J 2417; Pakistan National Shipping Corporation v. Rent Controller PLD 1992 Lah. 305 and Jamsehed Ahmad v. Muhammad Akram Khan 1975 S C M R

149. On the point of refusal to exercise writ jurisdiction due to availability of alternative and efficacious remedy, we may respectfully refer to law laid down by Supreme Court, of Pakistan in Murree Brewery's case PLD 1972 SC 279.

10. That is not all. There is another principle propounded by a Division Bench of this Court in "Haji Muhammad Ramzan v. Ch. Khizar Hayat PLD 1977 Lah. 424 to the effect that where entire evidence was available with the petitioner and no recovery was to be effected with the aid of the police, during the course of investigation (as in the present case), High Court may refuse to issue a direction for registration of a case.

11. The above principles were ignored and the learned Single Judge proceeded, we say with profound respect, to accept the writ petitions as if there was no other course open for their disposal. It was presumed that since it is the duty of the police to register the cases, which-duty it had failed to perform, it was unavoidably necessary to issue direction for registration of case. The element of discretion/judicial restraint involved in writ jurisdiction, keeping in view the facts/circumstances of these cases, on the touchstone of the above principles was, unfortunately, lost sight of.

12. It is true that police has no power to hold preliminary enquiry before registration of case but the reality of the situation remained that it indeed made such initial probes which could neither be ignored nor brushed aside while dealing with these cases. These probes and particularly the reports made thereon by Senior Police Officers, in pursuance of Court's decision should have been carefully looked into before considering the advisability of issuing writs of registration of cases. It is clear that respondent No. 1 felt comfortable is not highlighting these reports. The possibility that intentional effort was made to suppress these reports from the learned Single Judge also cannot be excluded. Be that as it may, the fact remains that the impugned orders were passed while not being cognizant of these reports/proceedings by the police in each case.

13. We are satisfied that if the above material had been brought to the notice of our learned brother, he might not considered the matters appropriate/fit for issuance of directions for registration of criminal cases.

14. Admittedly, no recoveries were to be effected and the grounds of the respondent against the local police and even the senior officers in failing to come to his rescue was consideration which should have weighed with the learned Single Judge as additional reason in refusing to order registration of cases as it would have amounted to direct respondent No. 1 to go to the same police office who had not helped him earlier. 14-A. It should not be lost sight of that indiscreet direction for registration of case can cause untold problems for the opposite party though the motive resorting to writ jurisdiction may be discernible on the face of the record namely to humiliate and persecute the opponent. The moment a criminal case is registered against a citizen he is put into terror of being interrogated ruthlessly and even arrested, besides his relations and friends, who also might be rounded up/called to the police station by an unscrupulous police officer. Keeping in view the track record of the police in the province, it would not be an exaggeration to state that normally innocents suffer while the actual culprits, having connections, roam about freely. The degradation in the moral values of C our society to be kept in view and so also the likelihood of false persecution in the case while issuing direction exercise of equitable jurisdiction under Article 199 of the Constitution.

15. Keeping in view the background of enmity between the parties and the nature of the allegations of identical pattern on each occasion, coupled with the report/proceedings by the police, no direction for registration of cases should have been issued by learned Single Judge in the discretionary jurisdiction. He should have been asked to file complaints, if so desired.

16. The upshot of the above discussion is that these appeals are accepted with cost and after recalling the impugned orders/writs all the three writ petitions are dismissed. H.B.T./J-62/L Petitions accepted.