2011 PLP 1279 (YLR)

IRFAN SAADAT KHAN, J.

This constitutional petition has been filed on the ground that the respondents Nos.1 to 7 have incorrectly implicated the petitioner in a number of false cases, hence directions may be issued to the respondent No.8 to register F.I.R. against the said respondents Nos. 1 to 7.

2. Briefly stated, the facts are some F.1.Rs. were lodged against petitioner at Police Station Baudhi and according to the petitioner he has been acquitted in all those F.I.Rs./cases, hence he has prayed that criminal case may be registered against the respondents Nos.1 to 7 for falsely implicating him in different F.I.Rs. as he' has suffered mental and physical agony at the hands of respondents Nos.1 to 7, hence the respondent No.8 may be directed to register F.I.R. against the said respondents. In support of his averments the petitioner has also filed his written submissions.

3. Syed Ali Madad Shah, Advocate, who was appointed as Amicus Curiae in this case has submitted that at the very outset this petition is not maintainable, as if there is any grievance, the petitioner should have first resorted to those provisions as alternate and efficacious remedy is available to him under the law hence this petition is not maintainable. The learned Amicus Curiae further submitted that proper remedy for the Petitioner was to approach the Sessions Court by making an application for registering of F.I.R. against the respondents and approaching this Court by way of filling constitutional Petition (C.P) is not warranted under the law. The learned, Amicus Curiae further submitted that this petition is also hit by latches, as the F.I.Rs. were registered against the petitioner in 1999 and hence if the petitioner had any grievance he should have come before this Court if law so permits, in that year and coming to this Court after a lapse of considerable time hence this C.P is time barred and the same is liable to be dismissed in limine. The leaned Amicus Curiae has further submitted that the petitioner has already availed the remedy by way of filing suits/applications before the lower Court, which are still pending, hence the present petition is also quite premature. In support of his above arguments the learned Amicus Curiae has relied upon 2003 YLR 1316, 2005 PCr.LJ 487, PLD 2002 Karachi 328, 2005 SCMR 951, PLD 2010 SC 691, PLD 2010 Lahore 419 and 2009 YLR 1533.

4. Mr. Zahoor A. Baloch, learned counsel appearing on behalf of respondents Nos.5 and 6 adopted the arguments of the learned Amicus Curiae and submitted that if the petitioner had any grievance he should have filed a case under Chapter VIII of Malicious Prosecution Ordinance 2002. He also invited my attention to section 500 of Cr.P.0 and 182 of the P.P.C.

5. Mr. Amjad Ali Sahto, learned counsel appearing on behalf of the respondents Nos.1, 2 and 4, adopted the arguments of the above counsel.

6. Mr. Mukhtar Ahmed Khanzada, the learned State Counsel has also adopted the arguments of the learned Amicus Curiae and submitted that the petitioner has also availed all the possible remedies, hence this petition is not maintainable. He further submitted that the petitioner has not come to this Court with clean hands as an elaborate order dated 10-5-2006 by the Sessions Court in respect of an application under section 22-A, Cr.P.C. filed by the Petitioner is in field, hence in presence of this order this petition is not maintainable.

7. I have heard the petitioner, the learned Amicus Curiae and all the learned counsel appearing on behalf of the respective respondents. The perusal of record reveals that a number of F.I.Rs. have been registered against the petitioner and most of the cases culminating from those F.I.Rs. have been disposed of by different authorities. It is also seen that the petitioner has previously filed C.P. and criminal miscellaneous applications, which mostly have been disposed of. It also seen that the petitioner previously moved an application under section 22-A, Cr.P.C. before the Sessions Judge Nawabshah, which was dismissed vide order dated 10-5-2006.

8. The record further reveals that a C.P. bearing No.108 of 2006 was filed by the present Petitioner before this Court and this Honourable Court vide order dated 10-11-2006 directed the SSP ACLC, CCP Karachi to 'conduct an enquiry and to submit his report, who vide his report dated 12-1-2007 did not find any cogent evidence against the police officials in respect of the F. I. Rs. registered by them against the present Petitioner. In the said C.P vide order dated 6-2-2007 this Court observed that the Sessions Judge, Nawabshah has traveled beyond his jurisdiction as provided under section 22-A, Cr.P.C, and his order was quashed. It has not been brought on record from either side what happened thereafter. It is a trite proposition of law that on refusal of the police to register the F.I.R. the adequate remedy is to either approach the Sessions Judge, Ex-officio Justice of Peace or Magistrate or to file direct complaint.

9. If a direct complaint is filed before the Magistrate under section 200, Cr.P.C. than under subsection (1) of section 202, Cr.P.C. Magistrate is empowered to direct to the police to investigate the case and in such event the I.O. was authorized to exercise all powers available to him in the Cr.P.C. for investigating the case including the power to arrest the accused person. Under section 22-A(6), Cr.P.C. the Sessions Judge as an Ex-officio Justice of Peace has the power to issue appropriate directions to the police on the complaint of, non-registration of F.I.R. to register F.I.R. if cognizable offence is found out and in the case police refuses to register F.I.R. Even the Magistrate could exercise his power under section 156(3) of the Cr.P.C. in this regard. However, provision of Article 199 of the Constitution, in my view, is not the appropriate remedy available to the present Petitioner.

10. I am fortified in my view with the decision given by My Lord "Rahmat Hussain Jaffely J" as he then was in the case of "Moula Box alias Mouledino v. S.H.O. Police Station Hatri Ghulam Rasool Shah and 2 others" (2003 YLR 1316) wherein under identical circum stances the learned Judge observed as under: -- "From the above position it is clear that if the police refuses to register the F.I.R. then the aggrieved party has the following adequate remedy under the Criminal Procedure Code: - (1) By approaching the Sessions Judge, ex officio Justice of Peace for exercise of powers under section 22-A (6), 1 Cr.P.C. (2) By approaching the Magistrate for exercise of power under section 156(3), Cr.P.C. of Chapter XIV, Cr.P.C. (3) By filing a direct complaint under section 200, Cr.P.C. of Chapter XVI, Cr.P.C." Similar view was taken in the decision reported as 2005 PCr.LJ-487.

11. For the foregoing reasons and dicta laid down in the above referred cases, I do not find any merit in the present Constitutional Petition which is hereby dismissed. However, the Petitioner may adopt the alternate modes to redress his grievance, if so advised.

12. Before parting with the order, I would like to record my appreciation for the able assistance provided by the Amicus Curiae this regard. H.B.T./A-138/K Petition dismisse