' SYED MUHAMMAD FAROOQ SHAH, J.---The captioned application has been filed under section 561- A, Cr.P.C. By the applicant, being aggrieved and dissatisfied with the impugned order dated 2-11- 2012, passed by the learned Sessions Judge/Ex-Officio Justice of Peace Ghotki in Criminal Miscellaneous Application No,1354 of 2012. The applicant has prayed to set aside and quash the impugned order on the facts and grounds averred in the instant application.
2. I have considered the contentions raised by the learned counsel for the parties, learned Assistant Prosecutor-General and perused the material available on the record.
3. The learned counsel representing the applicant, inter alia submitted that the respondent No,1 suppressed the real facts before the learned Sessions Judge as prior to the aforementioned Criminal Miscellaneous Application, Abdul Latif being maternal uncle respondent No,1 filed application under section 491, Cr.P.C. Before Court, against the husband of respondent No,1, in which detenue/respondent No,1 was produced before this Court and her statement was recorded, which facts have not been mentioned in the instant application. It is next contended that husband of respondent No,1 had also filed application under section 491, Cr.P.C. Before the Ex-Officio Justice 'of Peace Sukkur, in which he did not disclose any fact narrated in application under section 22-A and 22-B, Cr.P.C. Regarding the robbed property. Ft is contended that another Criminal Miscellaneous Application No,1163 of 2012, under section 22-A and 22-B, Cr.P.C. Was also filed by Mst. Dhaini i.e, second wife of applicant against applicant's party, which was dismissed by the Sessions Court by order dated 14th September, 2012, whereby the said Mst. Dhaini was advised to avail alternate remedy in shape of filing a direct complaint and the said order has not been challenged. It is submitted that in Criminal Miscellaneous Application No,S-492/2012, the respondent No,1 was allowed to go with her husband.
4. Mr. Sohail Ahmed Khoso learned advocate further contended that the learned Sessions Judge did not even peruse the report of concerned S.H.O. Submitted on 2-11-2012, wherein mentioned facts were depicted. The learned counsel categorically submitted that the provisions of section 22- A, Cr.P.C. Have been misused in this case and that the trial Court has acted in mechanical manner without applying its mind as to whether the applicant has approached the trial Court with clean hands or with mala fide intention. In this respect learned counsel placed reliance on the case of Imtiaz Ahmed Cheema v. S.H.O. P.S. Daharki (2010 YLR 189), wherein my Lord Mr. Justice Amir Hani Muslim laid down a criterion to entertain such type of cases. It will be advantageous to reproduce the penultimate para as under:-- "I have heard the learned counsel and perused the record. The provisions of section 22-A, Cr.P.C.
Have been misused in a number of cases. The wisdom of legislature was not that any person who in discharging of duties takes an action against the accused would be subjected to harassment by invoking provision of section 22-A, Cr.P.C. The Courts in mechanical manner should not allow application under section 22-A and B and should apply its mind as to whether the applicant has approached the Court with clean hands or it is tainted with malice. Unless such practice is discharged, it would have far-reaching effect on the police officials who in discharge of duties take actions against them. The law has to be interpreted in a manner that its protections extends to every one. I am therefore, of the opinion that order of the Sessions Judge was passed in mechanical manner and the applicant approaching the Sessions Judge. As per the record reflects that it was tainted with malice, I do not want to comment upon the conduct of the complainant, however it will be open to complainant to file direct complaint against the applicant if so advised and observations made in these proceedings will not come in the way of the complainant. The proposed complaint if filed will be decided on its own merits. This impugned order for the aforesaid reasons is set aside and Criminal Miscellaneous Application is allowed in the above terms."
' In the case of Rai Ashraf and others v. Muhammad Saleem Bhatti reported in PLD 2010 SC 691. The Division Bench of honourable Supreme Court of Pakistan held at para No,5 "it is settled law that each and every case is to be decided on its own peculiar facts and circumstances as law laid down by this Court in Muhammad Saleem's case 1994 SCM R 2213 and Mushtaque Ahmed's case PLD 1973 SC 418." The Division Bench of honourable Supreme Court further observed in second part of para No,6 of judgment as under:-- "It is a settled law that constitutional jurisdiction is discretionary in character which is to be exercised after proper application of mind with cogent reasons and same should not be exercised arbitrarily, The learned High Court had erred in law to exercise discretion in favour of the respondent No,l. Without realizing that the respondent No,1 had filed application before the Additional Sessions Judge/Ex-Officio Justice of the Peace to restrain the public functionaries not to take action against him in accordance with the LDA Act, 1975, Rules and Regulations framed thereunder, therefore, respondent No,1 had filed petition with mala fide intention and this aspect was not considered by the learned High Court in its true perspective."
5. On the other hand, the learned counsel representing the respondent No,1 placed his reliance on cases of Tahir Shah Nawaz Khan v. State (2009 YLR 436), Syed Imtiaz Ali Shah v. State (2009 YLR 505) and Akhtar Hussain v. Abdul Waheed reported as 2010 YLR 568. In all these 3 citations, the learned single Benches of the High Courts after(sic.) when found(sic.) merits in the application, filed under section 22-A and B, Cr.P.C. Dismissed the Criminal Miscellaneous Applications, filed by the proposed accused for quashment of F.I.R. Or proceedings Suffice is to say that facts and circumstances of the cited cases are not attracting to the case in hand hence distinguished.
6. Submissions made by learned counsel for the applicant are during supported with documents, available on the record and their authentication or genuineness has not been 'challenged/questioned or denied by other side, therefore there remains no reason or plausible cause discard the contentions of learned advocate for the applicant.
7. Keeping in mind the dictum as laid down in citations relied upon by learned counsel for the applicant, squarely applicable in the circumstances of the present case, the instant Criminal Miscellaneous Application is allowed as prayed for, with the observation that the respondent No,1 may have to seek alternate remedy by filing of direct complaint in the court having jurisdiction, if so advised. Criminal Miscellaneous Application stands disposed of along with office objection as well as listed application.