2013 P Cr (PLP)

FAROOQ ALI CHANNA, J.

Through the instant constitution petition, the petitioner seeks directions to the SHO Police Station Thari Mitwah, district Khairpur for registering his F.I.R. against the high handedness of the proposed accused and to investigate the case according to law. The facts giving rise to file the instant petition are that on 28-6-2012 the petitioner with his wife Mst. Samina and other family members were available in his house when at about 11-00 a.m. the proposed accused mentioned in para No.4 of the petition entered into the house and with the assistance of his wife Mst. Samina robbed of golden ornaments and cash Rs.20,

000. After committing robbery all the proposed accused along with his wife Mst. Samina ran away issuing threats that if the complainant party chased them, they would be murdered. The petitioner approached the concerned SHO for registration of F.I.R. but was returned unheard with the direction to come after 3 days. On 1-7-2012 the petitioner also came to know that his wife Mst. Samina has contracted marriage during her valid nikah with the petitioner with one of the proposed accused Qalandar Bakhsh Burdi. The petitioner again approached the SHO but his F.I.R. was not registered, hence he filed the instant petition. I have heard Mr. Hadi Bux Bhatt learned counsel for the petitioner. He has contended that SHO being public servant is duty bound to record the statement of the petitioner under section 154, Cr.P.C. and register the F.I.R., if cognizable offence is made out, but the SHO has failed to discharge his statutory duty. Learned counsel has further contended that rights of petitioner being citizen of Pakistan are guaranteed under the Constitution of Pakistan and this Court being the guardian of Constitution has ample powers to protect the constitutional rights of the citizens of Pakistan and issue directions to concerned S.H.O for registering the F.I.R. Learned counsel in support of his submissions has relied upon a case reported as Muhammad Asif v. Umer Farooque. Khan (2010 MLD 128). Conversely Mr. Agha Athar Hussain Pathan, learned AAG has contended that alternate remedy provided under law is available with the petitioner to get his grievance redressed by filing complaint under section 200, Cr.P.C. before the concerned Magistrate or seek such directions under sections 22-A and 22-B, Cr.P.C. by approaching the concerned Sessions Judge/Ex-Officio Justice of Peace. He has further contended that no doubt that this Court has also concurrent jurisdiction to issue directions to S.H.O for recording the statement of aggrieved person under section 154, Cr.P.C. but the petitioner at first instance has to approach the concerned Sessions Judge/Ex-Officio Justice of Peace for redressal of his grievances availing the remedies provided under the law which he has not availed hence the instant petition is liable to be dismissed. I have considered the submissions of learned counsel for the parties. There is no cavil to concurrent powers conferred in Sessions Judge and High Court as Justice of Peace by virtue of their office, but the jurisdiction exercised under Article 199 of the Constitution have certain conditions for invoking writ jurisdiction i.e. non-availability of alternate and efficacious remedy. The constitutional jurisdiction cannot be exercised as a matter of routine, however, in exceptional cases, the aggrieved person can invoke writ jurisdiction of this Court for seeking such directions. In the instant case no exceptional circumstances have been disclosed nor the petitioner has availed remedies provided under the law. Beside above, it is settled principle of law that where concurrent jurisdiction is vested in two courts i.e. High Court and Sessions Court then as a rule of propriety, lower court is to be approached in the first instance. In this respect I am fortified by a case decided by this Court, reported as Muhammad Yousuf v. Dr. Madad Ali alias Gulab Laskani and others PLD 2002 Karachi

328. For the reasons discussed above, the instant petition is dismissed, however the petitioner would be at liberty to avail alternate remedy provided under the law through the competent court for redressal of his grievances. MH/M-15/K Petition dismissed.