2000 PLP 2537 (YLR)

Learned A.A.‑G. also submitted that on 8‑10‑1998 S.H.O. Police Station 'A' Section Khairpur filed statement in the Court that petitioner has never approached for registration of his case against SDM. He submitted that under the circumstances the petitioner has not come to the Court with clean hands and was not entitled to the discretionary relief from this Hon'ble Court. He has relied upon the case of Wazir Ahmed v. S.H.O. Police Station Mahboob Palhoro and others (1990 PCr. LJ 2006). Mr. Qalander Bux Phulpoto adopted the arguments of learned A.A.‑G. and further argued that Chief Officer under the provisions of Sindh Local Government Ordinance was not competent to grant the lease in the face of imposition of ban by the Controlling Authority/Commissioner Sukkur Division, that the Municipal Authorities after due notice to the petitioner cancelled his lease on 8‑8‑1998 and Municipal Authorities also issued notice, dated 21‑3‑1998 to the petitioner as required under the law to remove the above encroachment in 7 days and on of failure to comply with the above requirements the respondents acted under section 110 of the Sindh Local Government Ordinance, that the Administrator and Chief Officer as well as other Government functionaries have protection under section 117 of the said Ordinance for the actions taken by them in good faith, that the petitioner tiled no appeal against the order of cancellation of plot which has attained finality. Learned counsel in support of his submissions relied upon the cases of Province of Punjab through Collector District Rahim Yar Khan and 2 others v. Abdul Bari (1998 PLD 1672) and Dr. Kashif Rahim v. S.P. Multan and others (1998 MLD 495). I have gone through the material placed with the case. It is admitted position that lease of space was allowed to petitioner by Chief Officer. In view of the ban imposed by the Controlling Authority/Commissioner, Municipal Committee Khairpur after due notice to the petitioner cancelled the lease. The petitioner did not file any appeal against this cancellation which attained finality. Further the record shows that petitioner was issued notice, dated 21‑3‑1998 requiring him to remove the encroachment in 7 days under Sindh Public Property . (Removal of Encroachment) Act, 1975 but even then the petitioner remained unconcerned. The encroachments were removed by the competent Authorities and the operation was supervised by Assistant Mukhtiarkar/ Magistrate. The mashimama was prepared on the site which was attested by the mashirs and the Iqrarnama signed by Waqar Ahmed Phulpoto show that nothing was taken away by the officers engaged in the removal work and the material available at the site was duly received by said Waqar Ahmed. On his own showing the petitioner was not present at the time of the incident and he was narrated the facts by Bashir Ahmed whose affidavit has not been filed. Even the witnesses have not been named in the petition. No counter‑affidavit/objections were filed to the parawise comments of the S.D.M. and Administrator of the Municipal Committee though time was sought by the counsel for petitioner. S.H.O. has denied that the petitioner approached him for registration of the case against the respondents and others. In this background of the matter I would like to discuss the case‑law referred to by the learned counsel for the parties. I would first take up the case‑law relied upon by the petitioner's counsel. In 1989 PCr.LJ 1129 grievance of the petitioner was that his two relatives Taj Muhammad and Abdul Rashid were arrested by S.H.O. Police Station, Panoakil for offence under section 107/151, Cr.P.C. The same S.H.O. who was impleaded in the petition as respondent No.2, manipulated the record to show arrest of the detenus named above to be on 22‑12‑1988 instead of 21‑12‑1988. In this regard attempt was made by the petitioner to file F.I.R., at the concerned police station but the S.H.O., refused to register the F. I. R., under section 154, Cr.P.C. Thereafter, petitioner approached this Court and after hearing the parties the petition was allowed by the Court and S.H.O., was directed to register the F.I.R. In the other case 1989 PCr.LJ 1945 the petitioner approached this Court stating that. he was working as Head Dispenser at Railway Hospital Sukkur and on 18‑1‑1989 he approached S.D.P.O.‑II Sukkur, Abdul Rahim Butt and informed him that his relatives Shahzado and others were wrongfully confined at Kandhra Police Station without registration of any F.I.R., by S.H.O., Abdul Jabbar. Memon. S.D.P.O. went to Police Station, Kandhra alongwith petitioner and found Shahzado and others detained wrongfully under orders of S.H.O. Such entry was made by the S.D. P.O. in the daily diary of the Police Station, dated 18‑1‑1989. Persons unlawfully detained were released by him. Upon this S.H.O., Abdul Jabar Memon became infuriated and registered a false case against petitioner and others under sections 365, 342, 323, 34, P.P.C., and section 12 Offence of Zina (Enforcement of Hudood) Ordinance through one Allahwasayo Shaikh. Subsequently house of petitioner was raided by said S.H.O. and he was also beaten up and taken naked to police station where he was maltreated, insulted and kept in lockup. After petitioner was released on bail, he went to the police station but his F.I.R., was not accepted and in consequence his report was not recorded. Prayer in the petition was that S.H.O. Police Station, Kandhra be ordered to register F.I.R., against S.H.O., Abdul Jabbar Memon, P. C. Abddul Hameed for offence under sections 323 and 355, P.P.C., and 17(3) of the Hudood Ordinance. In this background of the matter after hearing the parties and perusing the record, petition was allowed and S.H.O., Police Station, Kandhra was directed to register the F.I.R. On the face of it, I am afraid, the facts of the reported cases are not relevant for the decision of this petition. It would be pertinent to refer to the provisions of sections 110 and 117 of the Sindh Local Government Ordinance which road as under: "

110. Encroachments.‑‑‑‑Encroach ments shall be dealt with in accordance with the provisions of the Sindh Public Property (Removal. of Encroachment) Act, 1975. (Sindh Act V of 1975)." "

117. Protection of action taken in good faith.‑‑‑(1) No suit, prosecution, or other legal proceedings shall lie against Government, Election Authority or any officer or other person for anything done in good faith or intended to‑ be done under this Ordinance, or any rule or direction given thereunder. (2) No Court shall question the legality of any action taken in good faith by or under the authority of Election Authority or an Officer appointed by it or any decision given by any of them." Having regard to the above provisions of law and the facts and circumstances of the present case, I am unable to accede to the prayer made in the petition. In the reported case 1990 PCr. LJ 2006, learned D.B. of this Court held that relief under Article 199 of the Constitution being a discretionary relief, writ cannot be issued as of right or in routine and petitioner in order to seek a relief of this nature must come to the Court with clean hands and if he is found to have suppressed material facts, such relief should be refused. In 1998 MLD 1672 a civil revision tiled by the Province of Punjab against Abdul Bari was dismissed being time‑barred. This was a case where the negligence and inaction on the part of officials of concerned agency have been highlighted and commented upon. The following observations of learned Judge of Lahore High Court are worthwhile to be reproduced: "

6. It is pertinent to observe that the trend to grab public property and public money has become the orders of the day and has increased manifold. Those who have no conscience leave to chance to usurp Government property and loot the national exchequer because it is easy to manoeuvre the same with the active connivance of the concerned officials. On the contrary, it is very difficult to deprive an individual of his property, hard‑earned money or rights because he will fight with full force till last. While where the Government property is trespassed, occupied unlawfully, grabbed, .the department and officials, who are made watchdog and custodian of public property, sleep . over the matter until the period of limitation expires. Instead of being more vigilant and efficient they fail to bring competent forum well within time.

7. This is high time that the Government should take the notice of this situation and check the causes of delay and take appropriate action against the negligent and delinquent officials. Such lapses are usually due to the grant of intentional concession or unintentional inefficiency on the part of the concerned officials. They though paid from the national exchequer to watch the interest of the Government, fail to perform their duties for either of the above reasons. In all such cases, a liability be fixed and the responsible person be brought to book. The loss so caused to the public exchequer by their ' intentional or unintentional negligence or otherwise should be made good from them. After all how long is this country going to suffer as‑ their hands." The facts of the reported case 1997 PLJ 1558 were that telephone number of the petitioner in that case was disconnected under the orders of the Divisional Engineer Telephones and the petitioner wanted to get orders from the Court for registration of F.I.R., which was declined and petition was dismissed. It was observed that the telephone connection of the petitioner was disconnected at the instance of Divisional Engineer and a criminal case was registered against him under section 506, P.P.C., and section 29 of Telegraph Act at Police Station, New Multan. It was in retaliation that the petitioner wanted to implicate the concerned officers. In the present petition also somewhat identical circumstances exist inasmuch as the Municipal Authorities aided by the Local Administration had erased the unauthorised construction on the Government/Municipal land. Naturally the petitioner who had obtained the licence through under‑hand methods would see that these officers are made to face criminal prosecution. He has knowingly suppressed material facts and, therefore, cannot get discretionary relief from this Court in Constitutional jurisdiction. For the facts, circumstances, reasons and case‑law referred to and discussed hereinabove, I see no substance in the petition which is dismissed in limine with no order as to costs. Above are the reasons for my short order dated 3‑11‑1998. Q.M.H./S‑48/K