P L D 2002 Karachi 328 (PLP)

(f) Practice and procedure‑

Rule of propriety‑‑‑Concurrent jurisdiction vesting in two Courts‑‑‑Rule of propriety, demand of‑‑‑Subordinate Court in such a case should be approached in the first instance. Faiz Muhammad Qureshi for Petitioner. Madad Ali Shah Syed for Respondent No. l . Masood A. Noorani, Addl. A.‑G. for the State. Date of hearing: 12th February, 2002. Through this petition, petitioner has sought direction for registration of F.I.R. against the official respondents. On pre‑admission notice the respondents appeared and contested the, petition seriously. Briefly stating facts as given in the petition are that the petitioner's son namely Roshan used to reside in house of one Nadir Wakoo at Qasimabad, Hyderabad. It was claimed that the respondent No.1 i.e. Dr. Madad Ali had purchased a land adjacent to the village of the petitioner who wanted to construct a mosque and Autaq but such construction were objected to and parties became inemical towards each other. It was further claimed that the respondent No.1 is related to Taqi Laskani S.I.P. Police Station Market who is cited as respondent No.7. On account of such relationship he commanded influence over other police officers who are also cited as respondents It is claimed that in the wake of tension between the parties on 24‑12‑2001 at 8‑30 to 9‑00 p.m. respondent No.1 alongwith the official respondents attacked the house of Nadir Wakoo and called out Roshan who came out on such commotion. Respondent No.1 fired on Roshan who succumbed to the injuries. It is further claimed that the body of Roshan was carried away by the respondents to Civil Hospital where they reported that he has been killed in police encounter. It is the case of the petitioner that matter was reported to District Nazim and other higher officials but to no avail and his efforts to get the F.I.R. registered did not succeed. Respondent No. I denied the allegations in the counter‑affidavit. It was categorically stated that the subject land is not in his name and same was purchased by his son. Such fact has not been disputed in affidavit‑in rejoinder. It was further stated that the petitioner had no authority to raise any construction on the property of his son or for that matter on any public property. It was denied that he wield influence on any official respondent. He denied his piesence at the alleged scene of occurrence. It was stated that the deceased was criminal and involved in large number of cases. The offcial version has been placed on record by the respondent No.2, S.H.O. Police Station Qassimabad, Hyderabad. In his counter affidavit it was stated that on a tip during patrolling at Qassimabad suspicious car was spotted and when cautioned, inmates of the car started firing and one of the culprits was identified as Asad Majeedano. From inside the Bungalow fire was also opened and during this encounter 5 culprits were identified duly armed with lethal weapons. During such encounter Roshan was killed while the other culprits managed to escape their good. Large number of bullets and empties were recovered from the scene of occurrence with one Kalashnikov found with the dead body of the deceased. F.I.R. of the alleged incident bearing No.99 of 2001 was registered and one of the co accused Asad Majeedano alongwith car was arrested. It was further disclosed that the deceased Roshan Ali is involved in Crime No. 8 of 2001 Police Station, Hatri and Crime No.36 of 2001 Police Station Mirpur Bathoro. It was further disclosed that the petitioner is also. involved in large number of crimes and list of 5 F.I.Rs. has been given in the counter‑affidavit. Beside other alleged accused are also shown to be involved in large number of cases as listed in the counter‑affidavit. Learned counsel for the petitioner contended that under section 154, Cr.P.C. police is duty bound to record the statement of the petitioner and in case any cognizable case is made out is bound to take action in accordance with law. In support of his contention he has relied upon large number of cases including The State v. Haider Zaidi 2001 SCMR 1919; Muhammad Ilyas v. S.H.O. 1997 MLD 1527; Ghanwa Bhutto v. Government of Sindh PLD 1997 Kar. 119; Altaf Hussian v. Government of Sindh PLO 1997 Kar.

660. In contra learned Additional A.‑G. Mr. Noorani opposed the petition contending that the present petition is nothing but a pressure tactic on the official respondents to let‑off the other accused and to earn mileage in cases registered against the petitioner. It was stated that petitioner could join the investigation and if at all during investigation his version is found to be true then, the informant of the F.I.R. and ‑ those found involved can be arrested. He further argued that writ jurisdiction is a discretionary, alternate remedy by way of a direct complaint is available to the petitioner which can be effectively resorted. It was further argued that since F:I.R. is sought to be registered against police officials, same has been held to be exercise in futility in view of case reported as Muhammad Masood v. S.S.P. Railways 2000 PCr.LJ 67 and laved (Mrs.) v. S.H.O. 2000 MLD

997. In support of his contention that where alternate remedy is available, writ jurisdiction cannot be invoked, he cited Shahbaz Ali Chandio v. S.H.O. 1999 PCr.LJ 1670; Blioran Khatoon v. The State 1999 PCr.LJ 1532; Mazhar Hussain Naqvi v. Zafar H. Zaidi PLD 2001 Kar. 269; Ghulam Hussain deelani v. Government of Sindh PLD 2001 Kar. 169 and Altaf Hussain v. Government of Sindh PLD 1997 Kar.

600. Mr. Madad Ali Shah, learned counsel for .respondent No. l has adopted the arguments of learned. Additional A.‑G. I have heard the arguments and perused the record, Tendency of filing writ~petition for seeking relief of registration of F.I.R. is rampant in this Circuit. Cases for and against are cited by both the learned counsel Invocation of writ jurisdiction is subject to certain limitation and conditions. It is not that in every case where public functionary fails or neglects to perform their statutory obligation, writ jurisdiction as a matter of course could be exercised. Foremost condition is non‑availability of alternate and efficacious remedy. In all cases relied upon by the learned counsel for the parties, direct complaint has been held to be equally efficacious remedy. Even in case of a divergent version the apex Court as well as this Court have held that police could investigate into the offence independently if other version could be spelt out from the investigation then real culprit, may it be informant, could be arrested as police is bound to unearth the crime. For reference one may refer to Kaura v. The State 1983 SCMR 436, Yousif v. State PLD 1988 Karachi 521 and Ghulam Hussain Jeelani v. Government of Sindh PLD 2001 Kar.

169. In the case of Wajid Ali Khan Durrani's case 2001 SCMR 1556 and in Ghanwa Bhutto's case PLD 1997 Kar. 119 though Apex Court and this Court respectively ordered registration of the 3rd F.I.R. but the same was done in very special circumstances which do not exist in the present case which could warrant direction from this Court to the concerned S.H.O. for registration of the F.I.R. as per complaint of the petitioner. In addition to the remedy of filing a direct complaint under section 200, Cr.P.C. now the provisions of sections 22‑A and 22‑B, Cr.P.C. have been added to the Statute Book, whereby Sessions Judges and Judge of a High Court by virtue of their office, being justice of peace, can exercise all powers of :a Police Officer under section 54, Cr.P.C. Under section 22‑A, Cr.P.C. on receipt of information of occurrence of any incident involving breach of peace or commission of any offence within such local area, justice C of peace is conferred jurisdiction to forthwith make inquiries into the matter and report the result of his inquiry to the nearest Magistrate and so also to officer incharge of the nearest Police Station and at the same time can also pass an order for the registration of F.I.R. against a person against whom a reasonable suspicion exists of his having ‑participated in commission of any cognizable offence in addition to causing arrest of the culprit in such offence. Such view also finds support from a case reported as Imamdin v. S.H.O. and 4 others 1989 PCr.LJ 2016. In my humble opinion the powers conferred on Sessions Judges and the Judge of High Court as Justice of Peace by virtue of their office are vast as compared to the jurisdiction exercisable under Article D 199 of the Constitution where merely a direction could be issued, if at all, a case is made out. Since jurisdiction under sections 22‑A and 22‑B vest both, in High Court and Sessions Court, as a. rule of propriety where concurrent jurisdiction vests in two Courts then a Curt subordinate, is to be approached It in the first instance. In none of the cases cited by both the parties such alternate remedy, since made available under the law has been considered which in my humble opinion is far more efficacious and speedy remedy. The petitioner may avail of such alternate remedy, instead of approaching this F Court in its writ jurisdiction. In view of the foregoing this petition was dismissed vide short order dated 12‑2‑2002 and above are the reasons for the same. Q.M.H./M‑312/K Petition dismissed.