' MAMOON RASHID SHEIKH, J.---Through this petition the petitioner has prayed that a direction may be issued "...To the local Police to register a case in terms of section 154 of the Cr.P.C. To substantiate the allegation in the interest of safe administration of criminal justice."
2. The brief facts as per the petition are that one of the friends of the petitioner's husband namely Muhammad Amin (respondent No,2) tried to commit Zina-bil-Jabr with her on 15-5-2010, around 3-00/4-00 pm, when the petitioner had gone to the cattle-shed in the Ihata of respondent No,2 (which shed the petitioner's husband shared with respondent No,2) to fetch her cattle. Whilst the petitioner was at the shed, respondent No,2 tried to commit Zina-bil-Jabr with her. The petitioner, however, put up resistance and hearing her cries the petitioner's husband and others reached the spot and respondent No,2 failed to achieve his aim. In the struggle the petitioner sustained injuries.
The petitioner moved the local police for registration of a criminal case against respondent No,2 and also requested that her medical examination be conducted. The petitioner's request was, however, not acceded to. The petitioner was, therefore, constrained to move the Ilaqa Magistrate on 18-5-2010 for getting herself medically examined. The said application was allowed. The petitioner was medically examined and MLR No,147 of 2010 dated 19-5-2010 was issued by the W.M.O., R.H.C., Renala Khurd. On 20-5-2010 the petitioner filed an application under sections 22-A and 22-B of the Cr.P.C. For registration of an F.I.R. Against respondent No,2. The said application came up for hearing before the learned Additional Sessions Judge/Ex-Officio Justice of Peace, District Okara. Comments were called for from the local Police and after going through and relying on the same the learned Additional Sessions Judge/Ex-Officio Justice of Peace, dismissed the application on 4-6-2010.
3. The learned counsel for the petitioner contends that an offence has been committed by respondent No,2 against the petitioner and in passing the impugned order the learned Additional Sessions Judge/ExOfficio Justice of Peace, has erred in law. The said decision is not sustainable in the eye of the law. The learned Additional Sessions Judge/Ex-Officio Justice of Peace, has assumed the role of the S.H.O., which is not permissible under the law. Respondent No,1 is duty bound to register a criminal case, as envisaged by sections 154 and 155 of the Cr.P.C., on the petitioner's application. Respondent No,1 has, however, not fulfilled the mandatory duty cast upon him by the law. Reliance by the learned Additiohal Sessions Judge/Ex-Officio Justice of Peace, on the Police report is not justifiable under the law.
4. In support of his contentions the learned counsel has placed reliance on the judgments reported as Muhammad Aslam v. Justice of Peace/Additional Sessions Judge, Burewala, District Vehari and another [2010 PCr.LJ 296 (Lahore)], Gul Waiz and another v. Zuhra Bibi and others [2010 PCr.LJ 45 (Peshawar)] and Muhammad Bashir v. Station House Officer, Okara Contt. And others (PLD 2007 SC 539).
5. The learned A.A-G. Who is present on Court's call submits that the impugned decision of the learned Additional Sessions Judge/ExOfficio Justice of Peace, is unexceptionable. Further submits that even otherwise the petitioner has not exhausted the alternative remedy provided under the law by way of filing of a private complaint before approaching this Court. Contends that each and every case has to be decided on its peculiar facts and circumstances and in the presence of an alternative remedy a constitutional petition is not maintainable.
6. I have examined the record with the assistance of the learned counsel for the petitioner and the learned A.A-G. And have also heard their arguments.
7. I find that the learned Additional Sessions Judge/Ex-Officio Justice of Peace, based his decision on the report of the local Police which was inter alia to the effect that the version of the petitioner was false, she had actually been involved in a quarrel with the womenfolk of respondent No,2 over some squabble amongst the children of the two families. The petitioner had sustained injuries during the said altercation and had subsequently been thrown out of his house/Ihata by respondent No,2. The petitioner had approached the Police to seek revenge. No cognizable offence was stated to have been made out. Basing its decision on the said report the learned Additional Sessions Judge/Ex-Officio Justice of Peace declined passing any direction to the local Police and observed that if the petitioner has any grievance, she may file a private complaint.
8. The Hon'ble Supreme Court of Pakistan in Muhammad Bashir's case, (supra), has held that under the provisions of section 154 of the Cr.P.C. The S.H.O. Is under a legal obligation to register an F.I.R.
Whenever allegations regarding commission of a cognizable offence are levelled before him. At the same time, however, in para-41 of the said judgment the Hon'ble Supreme Court has observed that in matters of ordering registration of F.I.Rs, this Court has a discretion while exercising its constitutional jurisdiction. This Court may, therefore, in the peculiar circumstances of a given case decline to exercise its writ jurisdiction.
9. I find force in the arguments of the learned A.A-G. Inasmuch as every case has to be decided on its peculiar facts and circumstances and in the presence of an alternative statutory remedy writ petition is not maintainable. Reliance 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 of 2009 "Rai Ashraf etc. v.
Muhammad Saleem Bhatti etc."
10. The case of the petitioner, as per the Police report, appears to be based on a false premise.
Moreover, the alternative statutory remedy by way of filing of a criminal complaint is available to the petitioner but she has not exhausted that remedy before filing the petition. The precedents cited by the learned counsel for the petitioner do not advance his case.
11. This petition is accordingly dismissed.
12. The petitioner may, however, avail of the alternative remedy provided by law by way of filing of a private complaint in respect of her allegations, if so advised.
13. It is observed that in case the petitioner files a private complaint, the learned court seized of the matter shall not be influenced by any observation made in this order.