P L D 2010 Lahore 419 (PLP)

MAMOON RASHID SHEIKH, J.

Through this writ petition the petitioner is seeking a direction to the respondents for registration of a case against one Zaib-un-Nisa and her husband Muhammad Asif who are alleged to have committed a fraud against the petitioner.

2. The brief facts of the case as given in the petition are that the petitioner on 18-1-2004 entered into an agreement of sale regarding two pieces/parcels of land one measuring 46-kanals, 161-sq. ft, situated at Mauza Talwandi Rahwali and the other measuring 2-kanals, situated at Mauza Gulabpur G.T. Road Gujranwala. The consideration for sale was fixed at Rs.53,50,

000. At the time of signing of the agreement, out of the total consideration Rs.18,00,000 were paid in cash and through a cheque to Zaib-un-Nisa through her husband Muhammad Asif who was present at the time of execution of the agreement and was also one of the marginal witnesses. The balance consideration amounting to Rs.35,50,000 was paid through four cheques out of which three cheques were in the name of Muhammad Asif and one was drawn on self. Subsequently Zaib-un-Nisa and Muhammad Asif resiled from the agreement. The refusal by Zaib-un-Nisa and Muhammad Asif to honour the agreement led the petitioner to file an application for lodging of an F.I.R. against them before respondent No.1, under sections 420, 467, 468, and 471 of the P.P.C. Respondent No.1, declined to lodge the F.I.R. consequently the petitioner was constrained to file an application under sections 22-A and 22-B, Cr.P.C. before the learned Sessions Judge/Ex- Officio Justice of Peace Gujranwala. The petition came up for hearing before the learned Addl. Sessions Judge/Ex-Officio Justice of Peace, Gujranwala, who after summoning a report from respondent No.1 and after affording an opportunity of hearing to the petitioner dismissed the petitioner's application through order dated 22-2-2010. Feeling aggrieved the petitioner has filed this petition praying for a direction to respondent No.1 for registration of the F.I.R. against Zaib-un-Nisa and Muhammad Asif.

3. The learned counsel submits that a clear cut offence under section 420 of the P.P.C. is made out which is cognizable by police, hence, the finding in the impugned order dated 22-2-2010, passed by the learned Addl. Sessions Judge/Ex-Officio Justice of Peace is not sustainable. The learned Addl. Sessions Judge/Ex-Officio Justice of Peace assumed the role of the S.H.O., which is not warranted under the law. It was the mandatory duty of respondent No.1 to lodge the F.I.R. as contemplated under sections 154 and 155 of the Cr.P.C. The matter cannot be left to the sweet will of the concerned S.H.O., in this case respondent No.1. Reliance is placed on PLD 2005 Lahore 470, PLD 2007 SC 539, 2006 SCMR 1192, 2003 SCMR 1185, 1993 SCMR 550, PLD 2000 SC 18 and PLD 2009 Karachi 65.

4. The learned A.A.-G. has controverted the stance of the petitioner and has submitted that a civil suit for declaration and perpetual injunction has been filed by the petitioner against Zaib-un-Nisa and Muhammad Asif, which suit is pending in the Civil Courts at Gujranwala. The petitioner has deliberately concealed this fact from the Court. A report to this effect was submitted before the learned Addl. Sessions Judge/Ex-Officio Justice of Peace, wherein, it was also contended that the dispute between the petitioner on the one hand and Zaib-un-Nisa and Muhammad Asif on the other hand is purely civil in nature. It is further submitted that even otherwise, the petition is not maintainable as the petitioner has not exhausted the alternative remedy by way of filing of a private complaint in respect of his allegations against Zaib-un-Nisa and Muhammad Asif before a Court of competent jurisdiction.

5. I have gone through the record with the assistance of the learned counsel and find that the impugned order dated 22-2-2010, does not suffer from any illegality or material irregularity. In the case reported as "Muhammad Bashir v. S.H.O., Okara Cantt and others (PLD 2007 SC 539) one of the cases relied upon by the petitioner's counsel, the Hon'ble Supreme Court of Pakistan has held that an S.H.O. under the provisions of section 154 of the Cr.P.C., is under a legal obligation to register an F.I.R. whenever an allegation regarding commission of a cognizable offence is levelled before him. However, at the same time in Para 41 of the said judgment, the Hon'ble Supreme Court of Pakistan has also observed that in the matter of ordering registration of an F.I.R. this Court has a discretion while exercising constitutional jurisdiction. It has been clarified therein that in the peculiar circumstances of a given case this Court may decline to exercise its writ jurisdiction in favour of ordering registration of a criminal case on the basis of the allegations levelled by a petitioner. Even otherwise, it is settled law that every case is to be decided on its own peculiars facts and circumstances and in the presence of an alternative remedy writ jurisdiction is not maintainable. Reliance in this regard is placed on an unreported judgment of the Hon'ble Supreme Court of Pakistan dated 9-9-2009, passed in Civil Petition No.1398-L/2009 "Rai Ashraf and others v. Muhammad Saleem Bhatti and others".

6. The petitioner has a remedy by way of filing of a private complaint in respect of his allegations. The petitioner may avail of the alternative remedy provided to him under the statutory law, which is adequate in nature, if so advised. With these observations, the petition is hereby dismissed in limine. M.H./A-171/L Petition dismissed.