MISS AALIA NEELUM, J.-- Through this single order, I propose to dispose of W.P. No.10468 of. 2014 (Muhammad All v.The State etc.)and W.P. No.34323 of 2014 (Muhammad Ali v. The ASJetc.)as both the petitions are interlinked and intermingled. The petitioner through W.P. No.34323 of 2014 filed in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has prayed for setting aside the order dated09.12.2014, whereby the learnedAdditional Sessions Judge, Pindi Bhattian in his capacity as Ex-Officio Justice of Peace dismissed the application of the petitioner for registration of the criminal case with the direction to avail alternate remedy in the form of private complaint, if so advised, whereas the petitioner through W.P. No.10468 of 2014 filed in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has assailed the judgment dated 10.04.2014 passed by the learned Additional Sessions Judge, Hafizabad, whereby he set aside inquiry report dated 17.02.2014 prepared by Sahibzada Naqeeb Shahzad, Judicial Magistrate Section-30, Pindi Bhattian, in its revisional jurisdiction.
2. Brief facts relevant to the disposal of these constitutional petitions are as under:-- On 25.01.2014, Rana Jamil Qaiser, Inspector/SHO Police Station Saddar Pindi Bhattian received information through wireless, that two accused persons havesnatched motorcycle from the limits ofPolice Station Sukheki and fled towards Pindi Bhattian. The Station House Officer along with other police officials left the police station on official vehicle, immediately thereafter, for search of the robbers and at Watwanwala Ramp in the area of Police Station Jalalpur Bhattian, the accused by taking cover continued firing. When firing halted from the accused side, they found one accused dead while other was in injured condition. Injured accused disclosed his name as Inzemam-ul-Haq son of Muhammad Ali and of deceased as Ijaz alias Jajji soli of Karamat. Police also found a Kalashnikov and a rifle 8mm lying near them. Stolen motorcycle No.8575/LEK was also taken into custody by the police from the spot. The injured succumbed to the injuries on reaching at the hospital.
3. In respect of the above stated occurrence FIR No.31 dated 25.01.2014, under Sections 353/324/186/34, P.P.C. Read with 13/20/65 AO was registered at Police Station Jalalpur Bhattian on the complaint of Rana Jamil Qaiser Inspector/SHO at 07:20 a.m.
4. In respect of occurrence of robbery, on the complaint of Muhammad Afzal a case FIR No.13 dated 25.01.2014, under section 392, P.P.C. Was registered at Police Station Sukheki.
5. The District Police Officer, Hafizabad had made request to the learned District and Sessions Judge, Hafizabad for Judicial Inquiry to determine the cause of death of the deceased accused persons Ijaz alias Jajji son of Karamat and Inzamam-ulHaq son of Muhammad Ali through letter No.99-DL dated 30.01.2014. Thus, in view thereof, the learned District and Sessions Judge, Hafizabad through order dated31.01.2014 entrusted inquiry to Mr. Sahibzada Nageb Shahzad, Judicial Magistrate Section-30, Pindi Bhattian.
6. The learned Judicial Magistrate on consideration of the matter, held that the alleged encounter seemed to be fake one and submitted his report through letter No.26 dated 17.02.2014 to the learned District and Sessions Judge, Hafizabad.
7. Aggrieved by the report dated 17.02.2014 of learned Judicial Magistrate, Rana Jamil Qaiser, Inspector/SHO, Police Station Sadar Pindi Bhattian filed revision petition before the Session Court, Hafizabad and learned Additional Sessions Judge, Hafizabad, while accepting the same set aside inquiry report.
' Muhammad Ali, the petitioner approached the High Court through Constitution Petition No.10468 of 2014 with following prayer:- ' It is, therefore, mostrespectfully prayed that this writ petition may kindly be allowed and impugned order dated 10.04.2014 passed by the learned respondent No.2, may please be declared coram non judice, arbitrary, illegal, unlawful against the facts and circumstances of the case void ab-initio and the same may please be set aside in the supreme interest of justice."
8. Muhammad Ali, the petitioner through Writ Petition No.10468 of 2014 challenged the vires of order dated 10.04.2014 passed by the learned ex-officio Justice of Peace/Additional Sessions Judge Hafizabad, whereby application under Sections 22-A, 22-B of Cr.P.0 filed by the petitioner against the proposed accused/respondents was dismissed, hence this constitutional petitions.
9. As the facts and legal issues involved in both the Constitutional Petitions are similar and interlinked, I decide both the constitutional petitions by a common judgment in the Writ Petition No.10468 of 2014 as leading case.
10. I have considered the submissions made by the learned counsel for the parties and perused the record.
11. The present case is a case of police encounter, where the police officers to effect the arrest of the robbers faced continuous firing from the accused persons. Therefore, it can be said that the police while effecting the arrest of the accused persons incident took place. Therefore, the District Police Officer rightly requested to the learned District and Session Judge, Hafizabad for Judicial Inquiry to determine the cause of death of deceased Ijaz @ Jajji and Inzemam-ul-Haq. As death of deceased was result of police encounter, so to ascertain the real cause Judicial Inquiry was ordered. The learned Judicial Magistrate holds an inquiry and recorded the evidence taken by him in connection therewith in any manner hereinafter prescribed according to the circumstances of the case. The learned Judicial Magistrate after conducting inquiry submitted the report on 17.02.2014 to the learned District and Sessions Judge, Hafizabad. In inquiry report learned Judicial Magistrate shows that the encounter is not genuine, but a fake one. The Criminal Revision has been filed against the report dated 17.02.2014 made by respondent No.5, which was accepted by the learned Additional Sessions Judge, Hafizabad. It is submitted by the learned counsel for the petitioner that the finding ofthe learned Judicial Magistrate is with the basis and same is liable to restore. It is a fact that the incident is of alleged encounter. The undisputed aspects of the case are that:--
(i) Muhammad Afzal got lodged case FIR No.13/2014 dated 25.01.2014, under Section 392 P.P.C. At Police Station Sukheki, District Hafizabad regarding snatching of his motorcycle bearing registration No.LEK/8575 and cash amount from him and informed the police about the occurrence through mobile phone to wireless control 5240410. It was alleged that said occurrence took place at 05:30 a.m.
(ii) That FIR No.3I of 2014, dated 25.01.2014, under Sections 353, 324, 186 and 34, P.P.C. Read with Section 13/20/65 of Pakistan Arms Ordinance, 1965, was registered at Police Station Jalalpur Bhattian at 7:20 a.m.
(iii) The incident of alleged encounter and loss of lives of Inzemam-ul-Haq (son of the petitioner) and Ejaz alias Jajji son of Karamat (grandson of the petitioner).
12. In order to find the material in support of the findings I have gone through the inquiry proceedings recorded by the learned Judicial Magistrate. It is found that, the findings recorded by the learned Magistrate are absolutely without their being any solid material for such findings as well as same are not supported by any valid material. Zafarullah Khan, Ahmed Ali, Muhammad AU, Umar Hayat and Shameem witnesses from petitioner side deposed that on 23.01.2014 respondentNo.5 along with other police officials conducted raid at the residence of the petitioner and after breaking the doors of the house of the petitioner took into custody Inzamam-ul-Haq after torturing him. The police officers also gave beating to the mother of Inzamam-ul-Haq namely Shameem Bibi. The Medical officer during post-mortem did not opine that deceased was subjected to torture. There was no reasons with the police officials to allow the petitioner and other witnesses to provide meal to the deceased to became witness against them especially when Muhammad Ali, the petitioner already filed petition under Sections 22-A, 22-B of Cr.P.C. For registration of criminal case against Inspector Rana Jameel Qaiser as well as other police officers on 22.02.2014 before learned Justice of Peace/Additional Sessions Judge, Pindi Bhattian, wherein the petitioner mentioned that the grandson of the petitioner namely Sajad alias Haji was absconder in the case of murder of Nadeem. On 23.11.2013 the local police after receiving information about the presence of Sajjad alias Haji at the house of Ashraf Bhatti conducted raid and during cross firing three police officials lost their lives whereas grandson of the petitioner managed to escape. It is specifically mentioned in the said petition that after fifteen days local police also conducted raid at the house of the petitioner and arrested another grandson namely Ijaz son of Karamat as well as son-in-law namely Anam-ul-Haq. After .Detaining them for 10/15 days in police station, the police officials killed both Ijaz as well as Inzemamul-Haq in fake police encounter. It will be relevant to mention here that the petitioner in the petition under sections 22- A/22-B, Cr.P.C. Filed on 22.02.2014 made prayer for issuance of direction for registration ofcriminal case for burning household articles as well as sugarcane crops.
13. On the other hand wife of the petitioner namely Zuhra Bibi filed Writ Petition No.4583-H of 2014 before High Court regarding issuance of direction for recovery of Muhammad Ashraf whereas in the petition same fact was reiterated which was mentioned in the petition under Sections 22-A, 22- B Cr.P.C. In the petition under Sections 22-A, 22-B Cr.P.0 the petitioner had not mentioned that prior to the police encounter he along with other served meal to Inzamam-ul-Haq. Rather the entire version of the petitioner became doubtful regarding conducting of raid on 23.01.2014, providing meal on 24.01.2014 to the deceased. The petitioner as well as his wife in the above referred petitions did not mention that the petitioner and other witnesses had witnessed the alleged encounter on 25.01.2014. The entire inquiry report is silent that as to how Ejaz alias Jajji was apprehended by the police.
14. Zafarullah Khan specifically stated on Oath that when Inzamam-ul-Haq was about to run away, when Deputy Superintendent of Police, Tahir Gujjar made fires hitting on the back of Inzamam-ul- Haq. Post mortem report is in clean conflict with the alleged ocular account.
15. The learned Judicial Magistrate did not examine the official record of wireless control and the log book containing police wireless statement of Muhammad Afzal, the complainant of FIR No.13/2014, nor he recorded his statement.
16. For the above facts and circumstances, it appears that the report of the learned Judicial Magistrate dated17.02.2014 was not based on material. Therefore, the findings recorded by the learned Judicial Magistrate could be said as without material. It appears from the report that learned Judicial Magistrate acted on the statements of witnesses appeared on behalf of the petitioner and had not considered the documentary and medical evidence. Thus, in my view the impugned judgment dated 10.04.2014 is eminently reasonable and proceeds on cogent grounds.
The learned counsel for the petitioner has failed to point out any infirmity legal or factual in the impugned judgment dated 10.04.2014 passed by the learned ASJ, Hafizabad, which would justify interference.
17. In view of above findings recorded in Writ Petition No.10468 of 2014, it has been observed by this court that the impugned order dated 09.12.2014 passed by the learned Ex-officio Justice of Peace/Additional Session Judge, Pindi Bhattian is well speaking order and has rightly dismissed the application of the petitioner filed under Sections 22-A, 22-B Cr.P.C. Even otherwise the petitioner has an alternate remedy available to him by way of filing private complaint in respect of the allegation being levelled by him. Reliance has been placed on the case of "Rai Ashraf and others v.
Muhammad Saleem Bhatti and others" (PLD 2010 SC 691) in which in has been held that when alternate remedy is available, the petitioner/complainant has to file a private complaint.
18. For what has been discussed above, I find no illegality, infirmity or irregularity in the impugned judgment passed by learned Additional Sessions Judge, Hafizabad dated 10.04.2014 and the order passed by the learned Ex-officio Justice of Peace Pindi Bhattian dated 09.12.2014.
Consequently, both petitions have no force and same are hereby dismissed.