' AQEEL AHMED ABBASI, J.---Being aggrieved and dissatisfied with the impugned order dated 19-11- 2012 passed by the learned District and Sessions Judge/Ex-Officio Justice of Peace, Karachi South, whereby Criminal Miscellaneous Application No,1515 of 2012 filed by the applicant was dismissed.
Instant criminal miscellaneous application is filed under section 561-A, Cr.P.C. On the ground that in view of the contents of the application filed by the applicant before the learned District and Sessions Judge/Ex-Officio Justice of Peace, Karachi South, the learned District and Sessions Judge was bound to issue directions to the concerned SHO to register an F.I.R. Against the accused persons nominated in the said application.
2. Notices were issued to the respondents as well as A PG in response to which SIP Muhammad Iqbal, SHO City Court P.S. City Division South Karachi has filed comments, whereas Mr. Faisal Siddiqui, Advocate has filed Vakalatnama and an application under section 561-A, Cr.P.C. On behalf of some of the persons nominated in the complaint filed by the applicant with permission to assist the Court.
3. During the course of hearing it transpired that the applicant, who claimed himself to be an Advocate, had filed a complaint before the concerned SHO as well as before the learned District and Sessions Judge/Ex-Officio Justice of Peace, Karachi South, wherein he expressed his grievance against about 51 Advocates including office-bearers of Karachi Bar Association and female Advocates. By consent of the applicant and his counsel, the matter was adjourned with a view to explore the possibility to settle the dispute outside the Court if possible, whereas notice was also issued to the Secretary, Karachi Bar Association for such purpose, however, such effort could not be materialized and the matter was taken up for hearing to be disposed of on merits.
4. Learned counsel for the applicant has submitted, that in view of the contents of a complaint filed in writing before the learned District and Sessions Judge/Ex-Officio Justice of Peace Karachi South, the learned District and Sessions Judge/Ex-Officio Justice of Peace was duty bound to direct the concerned SHO to register an F.I.R. Against the accused persons nominated therein instead of observing that the applicant may file direct complaint under section 200, Cr.P.C. Or to direct the applicant to file a complaint before Sindh Bar Council against the proposed accused persons, as they are all of practising lawyers. It has been contended that similar complaint was filed before the SHO Police Station City Court, who did not register the case against the offenders, therefore, the complaint was filed before the learned District and Sessions Judge/Ex-Officio Justice of Peace Karachi, South, which has been dismissed without assigning valid reasons.
5. Conversely, Mr. Faisal Siddiqui, Advocate representing some of the proposed accused persons nominated in the written complaint has vehemently opposed the maintainability of the instant criminal miscellaneous application and supported the impugned order passed by the learned District and Sessions Judge/Ex-Officio Justice of Peace Karachi South. It has been contended by the learned counsel that from perusal of the contents of a written complaint in Urdu filed before the learned District and Sessions Judge/Ex-Officio Justice of Peace Karachi South by the applicant it may be noted that neither any cognizable office has been reported nor any witness of the alleged incidence has been cited by the applicant. It has been further contended that in fact, the applicant is an accused person, who is facing trial in Crime No,195 of 2012 registered under section 365-B, Women Rights Acts of Darakhshan Police Station for having committed rape and the matter is pending before the learned Additional Sessions Judge (South-II) Karachi) wherein Advocate Assia Munir and another Advocates are repressing the victim. As her counsel. Per learned counsel, the applicant is a man with criminal mind and also an obnoxious person, who has been continuously issuing threats and causing harassm ent to the lady Advocates, who are representing the victim girl in the above referred F.I.R. With a view to refrain them from representing the victim. Per learned counsel, several complaints in this regard have already been made before the competent forums, whereas affidavit to this effect has also been filed in aforesaid matter. It is contended by the learned counsel that, even from the perusal of the malicious complaint filed by the applicant before the District and Sessions Judge/Ex-Officio Justice of Peace Karachi South, it may be seen that the applicant, with mala fide intention, has concocted a false, frivolous and fabricated story and used abusive and filthy language against about more than 50 Advocates including the office bearers of Karachi Bar Association and the lady Advocates levelling the absurd and general allegations of his abduction, maltreatment and snatching of valuable articles from his possession by the Advocates. Per learned counsel, on the fateful day the applicant while attending the Court of Additional Sessions Judge in the above mentioned case as an accused person misbehaved with the lady Advocates, used abusive and filthy language and issued threats of dire consequences to them, who brought such incident to the knowledge of .The office-bearers of the Karachi Bar Association, who made a sincere effort to avoid any uncalled for incident and asked the applicant, who claims to be an Advocate, to proceed with his case in accordance with law instead of issuing threats to the learned lady Advocates, who are representing the victim girl in the aforesaid case wherein he has been accused of having committal rape of the victim girl. Per learned counsel, since the applicant is by nature criminal therefore has resorted to file frivolous complaint against large numbers of respectable Advocates including lady Advocates with a view to malign all of them, so that none of the Advocates named in his complaint either may represent the victim in the aforesaid case or may come to the rescue or in aid of the lady Advocates representing the victim.
Per learned counsel, the applicant has offered the respondent for the withdrawal of the instant case provided the respondent Advocates may withdraw the criminal case registered against him for the offence of having committed rape in the aforesaid case. It is further stated that the applicant is in fact blackmailing the learned Advocates by abusing the process of law. Learned counsel has further stated that even on merits the applicant has no case as the similar application was filed before the concerned SHO on the same day, who after having conducted a preliminary inquiry on the very date of incidence was of the opinion that no such incidence of alleged kidnapping of the applicant or snatching of the valuable articles or maltreatment by the Advocates took place. Similar report was also furnished before the concerned District and Sessions Judge in the instant proceedings whereafter learned District and Sessions Judge was also of the opinion that no cognizable offence has been made out, hence, the concerned SHO was right fn forming an opinion not to register a criminal case against the proposed accused persons. Learned counsel for the applicant has also referred to the provisions of section 195(1)(b)(c) read with section 228, P.P.C. And submitted that since the alleged offence took place in the Court of learned Additional Sessions Judge South-II, therefore, cognizance could have been taken by the learned Presiding Officer and not by the police. Per learned counsel, though the non-cognizance by the SHO and the learned District and Sessions Judge/Ex-Officio Justice of Peace does not suffer from any illegality, however, the applicant has an alternate remedy to file a private complaint under section 200, Cr.P.C. It has been prayed that serious exception may be taken for maligning a large number of practising Advocates including office bearers and the lady Advocates, whereas, the applicant be reprimanded for having abused the process of law. Learned counsel for the proposed accused persons has further stated that the respondents have filed an application seeking cancellation of bail granted by this Court to the applicant on the ground of misuse of such concession of bail, which is also pending and the same is fixed today along with instant criminal miscellaneous application. In support of his contention, learned counsel for the applicant has placed reliance on the following judgments:--
(1) Imtiaz Ahmed Cheema, SHO v. S.H.O. Police Station Dharki, Ghotki and 2 others 2010 YLR 189
(2) Qadar Ullah v. S.H.O. Police Station Latamber and 2 others 2012 YLR 1836
(3) Habibullah v. Political Assistant, Dera Ghazi Khan and others 2005 SCM R 951
(4) Syed Ali Shah v. The State 2010 M LD 1892
(5) Nazir Ahmad v. A.S.J and others 2011 PCr.LJ 396
(6) Mian Abdul Waheed v. Additional Sessions Judge, Lahore 2011 PCr.LJ 438
6. Mr. Kashif Hanif, Secretary of Karachi Bar Association has also supported the arguments advanced by Mr. Faisal Siddiqui, Advocate and, has prayed for dismissal of instant criminal miscellaneous application, which according to learned counsel, besides being false and frivolous, is also malicious and scandalous.
7. Learned APG has also opposed the maintainability of instant criminal miscellaneous application and supported the impugned order passed by the learned District and Sessions Judge/Ex-Officio Justice of Peace Karachi South. It has been further submitted that from perusal of the contents of complaint filed by the applicant it may be noted that malicious allegations have been levelled against large number of practising Advocates including office bearers and lady Advocates, whereas the allegations as contained therein are based on frivolous allegations and do not suggest any cognizable offence. It has been stated that instant criminal application is liable to be dismissed in limine.
8. I have heard both the learned counsel for the parties, Secretary Karachi Bar Association as well as learned APG, perused the record and the, impugned order passed by the learned District and Sessions Judge/Ex-Officio Justice of Peace Karachi South. From perusal of the contents of complaint which is subject-matter of the ,instant case, prima facie it appeared to be a dispute between Advocates, as the applicant, who claimed himself to be an Advocate, has complained of an incident which allegedly took place in the Court Room of ADM (South). Through a written complaint in Urdu, the complainant has alleged maltreatment by large number of Advocates including office-bearers of Karachi Bar Association and the lady Advocates. Accordingly, an opportunity was given to the applicant as well as to the respondent to examine the possibility of some settlement between the parties outside. The Court, whereas the Secretary of Karachi Bar Association was also directed to make his efforts in this regard. However, in spite of number of opportunities having been given for the aforesaid purpose, the matter could not be settled between the parties. Whereafter, instant criminal miscellaneous application was taken up for hearing for disposal on merits.
9. Through instant criminal miscellaneous application, the applicant has prayed that this Court may direct the SHO of City Courts Police Station to register an F.I.R. Against 51 Advocates, including office-bearers of Karachi Association and lady Advocates as well as 9 unknown persons who have been nominated by him in the written complaint, which was addressed to SHO Police Station City Court and other police officials. An application was also filed before the learned District and Sessions Judge/Ex-Officio Justice of Peace, Karachi (South) alleging somewhat similar incident, however without giving any detail or particulars. An order dated 19-11-2012 has been passed by the learned District and Sessions Judge/Ex-Officio Justice of Peace, Karachi South, which has also been impugned through instant criminal miscellaneous application. In the complaint written in Urdu dated 15-11-2012 filed by the applicant before the SHO, Police Station City Courts, Karachi, it has been alleged that on Thursday i.e, 15th November, 2012 at about 10-30 a.m. When the applicant was present in the Chamber of ADJ-II (South) Karachi, a number of Advocates including female advocates under influence of intoxication reached and asked for ransom of Rs,50,00,000 and when the applicant refused to accept such demand they started beating him in presence of the learned Presiding Officer with kicks and fist blows with the help of files, books, slaps, dandas and Screwdrivers. The applicant requested the learned Presiding Officer to report the matter to .SHO and call the Rangers, however, instead of considering, the request of the applicant, the learned Presiding Officer directed nominated accused persons to take away the applicant outside the Court and to beat him, whereafter, as per applicant, Advocates nominated in the complaint kidnapped the applicant and forcibly took him to Karachi Bar Association in the office of the President, Karachi Bar Association. It has been further alleged that his hands and feet were tied-up and he was again beaten and deprived of his case files, Court diary, NIC, KBA Card, Sindh Bar Council Card, Driving Licence, necessary documents, Cash, one purse, one mobile blackberry, Mobile SIM, one Rolex Watch black diamonds, 24 Carat Italian Gold, Bracelet weight 2 totals, one platinum white diamond ring weight 1 tola, one 24 carat Italian gold rope shape, a neck chain, one changeable pressure Rayban glasses of USA, one Cap, one pair of shoes, black Coat and clothes were torn and my body was full in blood. It has been further alleged that after hearing the hue and cry of the applicant, SHO, Sub-Inspector Muhammad Iqbal, ASI Noor Wahab and other police officials of the said Police Station of City Courts came to the rescue of the applicant and took him to the Police Station whereafter, the applicant reported the matter in writing and nominated about 51 Advocates with names and other 9 persons to whom the applicant states that he will recognize if produced before him.
10. It is pertinent to note that the applicant has also moved Criminal Miscellaneous Application No,1515 of 2012 before the learned District and Sessions Judge/Ex-Officio Justice of Peace available at page 35 as Annexure A-3, wherein neither the detail of the alleged incidence has been given nor the names of the alleged accused persons have been mentioned. Moreover, no detail of the articles, which were allegedly snatched from the applicant by the nominated accused persons, has been given. Learned District and Sessions Judge/Ex-Officio Justice Peace Karachi South issued notice to the concerned SHO and called for the report. The SHO Police Station City Court furnished the report, wherein it was stated that the allegations as contained in the complaint filed by the applicant are false. It was further stated that, in fact, on the date of alleged incidence the concerned SHO was called by the Vice-President of Karachi Bar Association on telephone and when the SHO/SI, Muhammad Iqbal along with his staff reached at Karachi Bar Association's Office, he was informed that the applicant Dr. Babar Hussain, is nominated accused in a rape case, in F.I.R.
No,195 of 2012 under section 365-B, registered at Police Station Darakhshan, which is under trial before the Court of ADJ-II South Karachi, and today was the date of hearing in this case in which Advocate Assia Muneer is the counsel of victim girl. Applicant reportedly misbehaved with the lady Advocate and the quarrel between the parties started and several Advocates gathered and both the parties came to Karachi Bar Room and an effort was made by the office-bearers to resolve the dispute. Advocate Assia Muneer informed that Babar Hussain is issuing threats and restraining her from pursuing the case of victim girl and has also used filthy language in Court. SHO, who inspected the site of the alleged incident, observed that neither the applicant was kidnapped as alleged nor any evidence or material was provided by him to substantiate his allegations. It was further opined that no cognizable offence could be made out, hence F.I.R. Was not registered.
Learned District and Sessions Judge/Ex-Officio Justice of Peace, Karachi South, keeping in view the report furnished by the SHO and looking at the nature of the vague and wild allegations levelled in the complaint was also not inclined to issue any directions to the concerned SHO to register an F.I.R.
About the alleged incidence and was pleased to observe that the applicant may seek his remedy by filing a private complaint under section 200, Cr.P.C. Or to file Complaint before Sindh Bar Council.
11. This Court is cognizant of the legal position, that if an offence is reported by the complainant to the concerned SHO, it is his duty to record the statement of complainant and if a cognizable offence is made out, to register an F.I.R. Under section 154, Cr.P.C. Against the accused person(s) nominated therein. However, on receiving such complaint, it is A the prerogative of the concerned SHO to form an opinion as to whether a cognizable offence is made out or not, whereas in non- cognizable cases the concerned SHO is not obliged to register an F.I.R. And to drag the person(s) nominated therein unnecessarily in order to avoid the abuse of the process of law. In the instant matter, it appears that the matter was reported to the concerned SHO as well as to the learned District and Sessions Judge/Ex-Officio Justice of Peace, Karachi South on the same day, however, with different particulars. On receipt of application filed by the applicant before the learned District and Sessions Judge/ExOfficio Justice of Peace, Karachi South on the same date called for the report from the SHO Police Station City Court, who furnished the same, wherein it has been stated that in fact, on the fateful date i.e, 15-11-2012, he received a call from the Vice-President of Karachi Bar Association and when he reached along with his staff at Bar Room, he was informed that the applicant Dr. Babar Hussain is nominated accused in F.I.R. No,195 of 2012 under section 365-B, Women Rights Act, at Darakhshan Police Station for having committed rape of the victim girl, which is pending trial before the learned ADJ-II (South) Karachi. He was further informed that it was a date of hearing when the applicant misbehaved with Advocate Assia Muneer, who is representing the victim girl in the aforesaid case, thereafter some quarrel started and several Advocates gathered, who brought both the parties to the Office of Karachi Bar Room, whereafter an attempt was being made to resolve the dispute. It has been further stated by the concerned SHO that during his stay at Karachi Bar Association, SDPO Eidgah also came and the matter was discussed.
Advocate Assia Muneer told the concerned SHO that the applicant Babar Hussain has misbehaved with her used abusive and filthy language in Court and issuing her threats to refrain from pursuing the case of rape of the victim girl. The SHO Police Station City Courts has further reported that no alleged offence of kidnapping or snatching of articles took place nor any material was produced by the applicant to substantiate such allegation. The SHO has also reported that the contents of the application before the learned District and Sessions Judge/Ex Office Justice of Peace Karachi South are different from the contents of the written complaint submitted in the Police Station, whereas the allegations in the instant criminal miscellaneous application are also different from the allegations as contained in the aforesaid application/complaint. The SHO has opined that no such incidence took place as alleged by the applicant. The SHO present in Court has further stated that neither the applicant was found in injured condition as alleged nor he complained of being robbed of his articles by the accused persons nominated. Furthermore, he was not found under detention in the Office of Karachi Bar Association. He has stated that on the face of it and in view of three different version of the applicant about the same alleged incidence, the complaint of the applicant appears to be false and frivolous. The SHO has filed such comments in writing before this Court, however, no objection whatsoever has been filed by the applicant on such comments.
12. From perusal of the contents of the application filed before the learned District and Sessions Judge/Ex-Officio Justice of Peace Karachi South by the applicant, complaint filed before the SHO, Police Station City Courts and the facts as stated before this Court through instant criminal miscellaneous application, it is noted that there are various discrepancies in the version of the applicant which could not be reconciled by the learned counsel for the applicant during the course of arguments. It is pertinent to note that the applicant has not been able to produce any material or refer to any evidence which could support his allegation, whereas the applicant has not even filed a complaint before the learned ADJ-II (South) Karachi, in whose Chamber the alleged incidence took place. If such incident would have taken place in the Court of learned Presiding Officer, the matter could have been reported to the learned Judge, who could have taken action in accordance with law against the offenders. Admittedly, the applicant has been nominated in a criminal case. An F.I.R. No,195/12 has been registered against the applicant under section 365-B, Women Rights Act of Darakhshan Police Station, which is pending trial before the learned ADJ-II (South) Karachi, wherein lady Advocate Assia Muneer is representing the victim girl. It has been complained by, the learned counsel for the lady Advocate that the present applicant is continuously issuing threats and has used abusive and filthy language against her to restrain her from representing the victim girl in the aforesaid case. From perusal of the changed version of the complainant in both the applications filed before the SHO Police Station City Courts and before the learned District and Sessions Judge/Ex-Officio Justice of Peace and the report furnished by the SHO Police Station City Court in the instant matter, the very allegation of kidnapping and snatching of articles have been rendered falsified, whereas the rest of the allegations, which are otherwise non- cognizable, appears to be equally false and doubtful. From hereinabove facts and circumstances of this case, it can be gathered that allegations, besides being vague and malicious in nature, are not supported by any material or evidence, whereas no specific role appears to have been assigned to any of the nominated accused persons, who are all practising Advocates and include the elected representatives of Karachi Bar Association and the lady Advocates.
13. In view of hereinabove, the complaint of the applicant on the face of it appears to be tainted with malice and based on wild allegations and exaggerated facts. Whereas in view of the report, furnished by the SHO Police Station City Courts falsifying the allegation of kidnapping and snatching of articles, no cognizable offence appears to have been alleged in the complaint which may warrant any cognizance by police. No material or evidence has been referred or produced before the concerned SHO or before the learned District and Sessions Judge/ExOfficio Justice of Peace in support of the allegations as contained in the written complaint filed by the applicant.
Admittedly, the applicant is accused in F.I.R. No,195 of 2012 registered under section 365-B, Women Rights Act, Darakhshan Police Station who appears to have become desperate and is making an attempt to restrain the Advocates to represent the victim in the aforesaid F.I.R. By maligning a large number of Advocates and dragging them in a false criminal case.
14. In the case of Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 Supreme Court 691, the Hon'ble Supreme Court while dilating upon the scope of sections 22-A, 22-B, 54 and 200, Cr.P.C. Has held as under:- "(5) We have given our anxious consideration to the contentions of learned counsel for the parties and have perused the record. It is a 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 Mushtaq Ahmed's case PLD 1973 SC 418. The relevant observations in Mushtaq Ahmed's case Supra is as follows:- "Everything said in a judgment and more particularly in a judgment in a criminal case must be understood with great particularity as having been said with reference to the facts of that particular case."
(6) It is admitted fact that petitioners have alternate remedies to file private complaint before the competent Court, therefore, constitutional petition was not maintainable and the High Court has erred in law to send the copy of the writ petition to the S. H.O concerned. The direction of the High Court is not in consonance with the law laid down by this Court in Jamshaid Ahmed's case (1975 SCMR 149). It is also a settled law that the learned High Court had no jurisdiction whatsoever to decide the disputed questions, of fact in constitutional jurisdiction."
15. Further reference in this regard can be made to the case of Muhammad Bashir v. Station House Officer, Okara Cantt. And others PLD 2007 Supreme Court 539, Syed Ali Shah v. The State 2010 M LD 1892 and Nazir Ahmad v. A.S.J. And others 2011 PCr.LJ 396, wherein, the Hon'ble Division Benches of this Court as well as the Hon'ble Bench of Lahore High Court.
16. Keeping in view the ratio of the aforesaid judgments, I am not inclined to exercise any discretion under section 561-A, Cr.P.C. Either to set aside the impugned order passed by the learned District and Sessions Judge/Ex-Officio Justice of Peace, Karachi South, or to issue directions to the concerned SHO to register an F.I.R., particularly when it has already been held that no prima facie cognizable offence has been reported in the complaint. Therefore, instant criminal miscellaneous application is dismissed being devoid of any merits.