Shahnawaz Tariq, J. Through the instant Cr. Misc. Application U/S 561-A Cr.P.C, the applicant has agitated the impugned order dated 28.02.2013, passed by the learned Additional District & Sessions Judge (Hudood)/Ex-Officio Justice of Peace Sukkur in Cr. Misc. No. 98 of 2013, whereby the learned Judge has dismissed said application for registration of FIR against the proposed accused.
2. Brief facts spelled out are that on 04.02.2012, at about 4.35 pm., it was a rainy day and the applicant with his family members, was present in his house, and having tea. There was a knocked at the door and the adult son of the applicant namely Irfan Ali opened the door and noticed proposed accused Muzaffar Ali s/o Wazir Ahmed who enquired about the applicant, and applicant's son replied that applicant is having tea. Accused Muzaffar Ali called other co-accused persons on mobile phone and asked them to bring weapons, and they shall not leave the applicant and shall take faisla from him. In the meantime accused persons Muzaffar Ali and Ali Muhammad, both armed with TT pistols and accused Wazir Ali with knife, and two un-identified accused persons with lathis entered into the house of applicant, accused Muzaffar Ali slapped to the applicant and his son Irfan Ali and undefined accused persons hold the son of applicant, and accused Wazir Ali took out knife from fold of his shalwar and pointed upon the neck of Irfan Ali, accused Muzaffar Ali and Ali Muhammad by pointing their pistols upon the applicant party, said that today they would not leave his son and applicant shall face the consequences, upon which the family of applicant gave references of Holly Quran not to kill his son, whereupon accused replied that why the applicant has moved applications to SSP Sukkur and Mohtasib Aala Sukkur for getting his share in property. The applicant replied that accused persons had reduced in writing before SHO P.S Pano Akil a compromise for their share in property. Accused persons rigidly refused and issued threats to the applicant and then they went away from his house. The applicant approached SHO, the respondent No.1 for registration of FIR but the respondent No.1 advised him to come on next day and paid no heed to the request of the applicant and no FIR was lodged against the proposed accused.
3. The applicant being dis-satisfied with the act of concerned SHO, filed a criminal misc. application No. 98/2013, U/S 22-A and 22-B Cr.P.C before the court of learned Sessions Judge, Sukkur, which was transferred to the court of learned Additional District & Sessions Judge (Hudood)
Sukkur, praying therein that directions may be issued to the concerned SHO to lodge FIR against the proposed accused. The learned court called report from the police, and concerned police submitted report and stated that there is a civil dispute over property between the applicant and the proposed main accused, who are real brothers. Police has denied the occurrence of the alleged offence as alleged by the applicant. Therefore, the learned court / Justice of Peace dismissed said application vide impugned order dated 28.02.2013.
4. Mr. Shafique Ahmed Laghari, learned counsel for the applicant has contended that the proposed accused persons have committed heinous offence, therefore, they are liable to be prosecuted according to law. He further contended that the police is bound to lodge FIR of the applicant. The learned ADJ Hudood has not applied his judicial mind while dismissing application of applicant vide impugned order dated 28.02.2013, in hasty manner without reaching on the proper conclusion and dismissed his application mainly only the point that the dispute between the parties is of a civil nature and the applicant wants to convert a civil litigation into a criminal litigation. The learned judge has not touched the merits of the case and failed to appreciate the statement of the applicant for taking cognizance against the proposed accused who are annoyed with the applicant upon moving his applications to SSP Sukkur and Mohtasib Aala Sukkur for his share in disputed property. He relied upon the cases reported in SCM R 2012 354, P Cr. L J 1996 1440, YLR 2002 3625, YLR 2004 2027, SCM R 2008 1448, P Cr. L J 2004 1154 and P Cr. L J 1991 534.
5. Mr. Nizamuddin Baloch, learned counsel for the proposed accused has vehemently opposed the contentions raised by the counsel for the applicant. He has contended that the applicant and the respondents / proposed accused are real brothers and proposed accused namely Ali Muhammad is an old man and present before the court. He further contended that during the life time of deceased father of the parties, the proposed accused Ali Muhammad and Wazir Ali had purchased the disputed land from its original owner through registered sale deed about 12 years back. The applicant has not filed any suit for cancellation of said sale transaction since the day of purchase of disputed land by the proposed accused before any Civil Court till-date. Further contended that previously the proposed accused had also filed a criminal misc. application before this court bearing No. 78 of 2013, as police was in league with the applicant and was causing harassment to him, and notice was issued by this court, and SHO concerned appeared before this court and gave assurance that the purposed accused would not be harassed in this regard, whereupon said cr.
Misc. application was disposed of by this court. He further contended that the applicant has cooked a false story against the proposed accused as at present applicant has neither filed any civil suit nor any criminal proceedings are pending against them before any authority, and even the applicant has failed file copies of alleged applications moved by him to SSP Sukkur and Mohtasib Aala Sukkur before this court, therefore, there was no need to issue any kind of threat to the applicant particularly in day time and inside the house of the applicant but amazingly no one was attracted from mohallah nor the applicant called any person or authority for his help when main accused made call to co-accused persons through his mobile phone to come at the house of applicant and to bring weapons. He relied upon the case of Muhammad Mushtaque vs Additional Sessions Judge, Lahore (2008 YLR 2301), wherein it has been held that no doubt Justice of Peace could not go into veracity of information in question but at the same time it was permissible for him to examine the complaint. Justice of Peace did not violate the settled law and exercised jurisdiction vested in him and dismissed the complaint rightly with observation that it was a civil dispute. Sale deed registered 22 years ago in favour of accused and adverse to the claim of petitioner was still in field. High Court, in exercise of Constitutional jurisdiction, declined to allow petitioner to seek cancellation of the sale-deed or to challenge its legality and correctness before police. If petitioner's request was allowed, it would amount to encroachment upon powers and functions of civil court already seized of the dispute. Petition was dismissed in circumstances.
6. I have heard learned counsel for the parties and perused the record available before this court. A report was called from concerned police and a statement has been filed by Pano Akil police that the petitioner filed Cr. Misc. Application No. 98 of 2013 u/s 22-A 22-B Cr.P.C for registration of FIR against his real brother Ali Muhammad, Wazir Ali and nephew Muzaffare Ali and two unknown persons, and police had filed statement before learned court of ADJ Hudood/ Justice of Peace that the petitioner and respondents are real brothers and dispute between the parties is pertaining to distribution of property. The matter is purely civil nature and no any cognizable offence has been made out. Considering police report and hearing arguments of both parties, the learned court dismissed said cr.misc.application. The operative part of the impugned order passed by learned ADJ Hudood / Justice of Peace Sukkur is reproduced as under:- "I have given my anxious consideration to the arguments advanced by learned counsel for the applicant, learned counsel for the proposed accused and learned ADPP for the State and perused the case papers. Admittedly, there is dispute over the plot in between the applicant and proposed accused persons, the record reveals that the proposed accused Ali Muhammad filed an application U/S 22-A & 22-B Cr.P.C before the Court of Hon'ble learned Sessions Judge Sukkur that a residential plot situated in Gharibabad Mohalla, Pano Akil, which was dismissed by the learned IInd Additional Sessions Judge Sukkur vide order 01.11.2012, the Photostat copy of such order is placed on record. Meaning thereby, that the dispute between the parties is of civil nature and the applicant wants to convert the civil litigation in to criminal litigation. I may refer here the case of Mohammad Mushtaq Vs Additional Sessions Judge Lahore and others reported in 2008 YLR 2301 (Lahore). Therefore, I find that the same is devoid the merits of case, hence the Cr. Misc. Application in hand is dismissed accordingly".
8. From the contents of instant application, it is crystal clear that there is civil dispute between the parties which has been arisen over a plot and instant Cr. Misc. application is continuation of said dispute. Furthermore, from the perusal of the record it has transpired that applicant has not filed copies of applications allegedly moved to SSP Sukkur and Mohtasib Aala Sukkur against proposed accused for claiming his share in the disputed property before this court to prima facie establish the motive of commission of the alleged offence by the proposed accused.
9. In case of Habibullah Vs Political Assistant, Dera Ghazi Khan and others, 2005 SCM R 951, the Hon'ble Supreme Court of Pakistan has held as under: "It is not obligatory for High Court to issue writ in each case irrespective of facts and circumstances, which could call for exercise of judicial restrain in turning down such request in view of the conduct of petitioner besides considering that adequate remedy in the form of private complaint was available to him".
The Hon'ble Supreme Court of Pakistan has further held as under: "It may be observed that filing of private complaint could provide an equal adequate relief to the petitioner because he could lead the entire evidence himself before the trial Court and his grievance could be adequately redressed".
10. In case of Muhammad Ramzan Versus Additional Sessions Judge Kabirwala District Khanewal & 6 others, 2005 P.Cr.L.J. 5179, the High Court has held as under:- "I am of the confirmed view that if the petitioner had evidence against the respondents for the commission of criminal offence, it would be appropriate for the petitioner to file a private complaint before the Court of competent jurisdiction, instead of running after the police, who are not prepared to accept the contention of the petitioner and if at all they are forced to register a case it is going to be exercised in futility as it still face the same fate in the dismissal of the same as the police authorities are not convinced that any criminal offence had taken place. It would be in the interest of justice and for the benefit of the petitioner to lodge a private complaint for the redress of his grievance and it is only a Court of competent jurisdiction, who after recording the convincing evidence of the petitioner issue summons against the accused persons and if found them guilty can punish them in accordance with law. In this view of the matter, this writ petition having no force is dismissed".
11. In case of Mian Abdul Waheed v/s Additional Sessions Judge, Lahore and 7 others 2011 P.Cr.L.J 438, wherein it has been held that jurisdiction under Ss.22-A and 22-B, Cr.P.C could not be exercised mechanically by the Ex-Officio Justice of Peace by directing registration of F.I.Rs, in each and every case, and each and every is to be decided on its own peculiar facts. This Court is fortified by the dictum of law as laid down by the Honourable apex Court in the case reported as PLD 2010 SC 691 Rai Ashraf and others Versus Muhammad Saleem Bhatti, wherein it has been held that for administration of justice each and every case is to be decided on its particular facts and circumstances.
12. Furthermore, from perusal of the impugned order it has transpired that one another criminal application with similar prayer was also filed before the court of learned Sessions Judge/ Justice of Peace, Sukkur which was subsequently transferred to the court of 11nd Additional Sessions Judge Sukkur, but same was also dismissed by the said court vide order dated: 01.11.2012.
13. Moreover, when it is noticeably appearing from the available material available before the court or detailed report furnished by the police, before the court of Justice of Peace that the complaint is based on malafide intention of the complainant and if it is lodged it would just drag the proposed accused in a false case which would also cause any kind of unnecessary harassment and mental agony to the proposed accused, then it is prime duty of the court to play its role to curtail and discourage such practice, otherwise it would be amounting to the issuance of license of encouragement for the abuse of process of law which was never be the scheme of legislature.
13. For the foregoing reasons, circumstances and considering the identical rulings referred supra, I am of the humble view that the applicant and proposed accused are real brothers and they are disputed over a plot. The applicant has neither filed any civil suit for cancellation of lease deed during the last more than ten years till-date nor approached any competent authority for redressal of his grievance and even has not produced copies of applications allegedly moved by the applicant to SSP Sukkur and Mohtasib Aala Sukkur against the propose accused for his share in disputed property to strengthen his claim for the purported occurrence of the alleged offence.
However, I am agreed with the contention of counsel for the applicant to the extent that neither the concerned police nor the Justice of Peace can refuse the application or complaint of any aggrieved person, if any cognizable offence is made out. But, In this context, it is prime duty of the applicant/ complainant to place the true facts and honest circumstances from which prima facie any cognizable offence is made out for issuance of such direction to police to lodge the FIR.
Conversely, in present case, the applicant has failed to place trust worthy evidence and inspiring confidence circumstances before this court in support his claim that a cognizable offence is made out against the proposed accused, therefore, the impugned order dated: 28.02.2013, passed by the Justice of Peace, Sukkur does not call for any interference, hence, instant Cr. Misc. Application stands dismissed. However, the applicant is at liberty to file a private complaint to achieve subject purpose if desire so.