' Petitioner through this Constitutional Petition has prayed for a direction to be issued to respondent No,1 who is S.H.O., Police Station Sukheke, District Gujranwala for registration of a case against the persons named in para. 3 of the petition who by order of this Court dated 30-5-1984 have been impleaded as respondents Nos. 2 to 6 at their own request made through C.M. No, 1488/1984.
2. Facts necessary for the disposal of this petition are that in respect of an occurrence which took place on the night between 23/24-1-1983 at about 10/11 p.m. And in which one Muhammad Ali lost his life as a result of gunshot injury allegedly given to him by Muhammad Rafiq, a co-accused of the petitioner, a case under section 302/307/L4, P.P.C. Was registered at P.S. Sukheke vide F.I.R. No, 9, dated 24-1-1983 against the petitioner and his co-accused Muhammad Hussain, Manzoor Ahmad and Muhammad Rafique. During the investigation of the case, petitioner and his two co-accused Manzur Ahmad and Muhammad Rafiq were found guilty and they were challaned. However, Muhammad Hussain ccused was found innocent and his name was placed in column No, 2 of the challan. That case is now stated to be pending in the Court of Additional Sessions Judge, Gujranwala and according to the respondents it was fixed for prosecution evidence on 19-5-1984 but was adjourned due to the pendency of the present writ petition.
3. Version of the petitioner, on the other hand, is that he along with two other persons was sitting in a house which was in his possession and with respect to which a dispute existed between the parties and numerous cases were pending in various Courts. Respondents Nos. 2 to 6 along with Muhammad Ali deceased, all armed with 'lathis' except Imtiaz respondent who was armed with gun came there and wanted to take forcible possession of the house in dispute. Petitioner and his companions resisted the attempt as a result of which he and his companions suffered injuries at the hands of the respondents. Imtiaz Ali, respondent started firing to overawe the petitioner and in the process, Muhammad Ali received firearm injuries. Case of the petitioner is that the respondents committed criminal trespass and attacked him and that Muhammad All was killed as a result of firing of Imtiaz respondent but the respondents in collusion with the police involved the petitioner and his co-accused in this case. Petitioner's grievance is that the respondents had committed cognizable offences and a case should have been registered against them but the respondent S.H.O. Refused to record the F.I.R. On the basis of the petitioner's version.
4. Learned counsel for the petitioner has submitted that the counter-version set up by the petitioner spelt out the commission of cognizable offences by respondents Nos. 2 to 6 and, therefore, respondent S.H.O. Was under a statutory obligation to register a cross-case against the said respondents containing the petitioner's version. In support of his contention, learned counsel has placed reliance on (1) Akram Ali Shah v. S.H.O., P.S. Kotwali, Kasur and 2 others PLD 1979 Lah. 320,
(2) Muhammad Aslam v. S.H.O., P.S. Mamun Kanjan, Faisalabad PLD 1980 Lah. 116, (3) Karim Bibi v.
S.H.O., P.S. Rajana Faisalabad NLR 1980 Criminal Lah. 95, (4) Malik Muhammad Aslam v. S.H.O., P.S. Sadder, Sargodha and 2 others PLD 1981 Lah. 138 and (5) Mirza v. S.H.O., 1982 P Cr. L J 171.
5. No doubt, it was held in the aforementioned cases reported as PLD 1979 Lah. 320, PLD 1980 Lah.
116 and 1982 P Cr. L J 171 that if the accused of a particular case have counter-version by way of a grievance and the counter-version discloses commission of cognizable offence, it is the duty of the Station House Officer to register a counter-F.I.R. And in case of his failure to do so, he can be commanded by this Court to perform his statutory obligation. However, there is no dearth of case- law on the point that so far as this Court is concerned, it is not necessary that in each and every case, where there is an omission to perform a statutory duty, a direction must issue. Facts and circumstances of each case have to be taken into account and it has also to be seen if filing of a private complaint, in the circumstances of the case, is not as adequate or efficacious a remedy as the registration of a case. Reference in this behalf may be made to the case of Malik Muhammad Aslam v. S.H.O. PLD 1981 Lah. 138 in which Mr. Justice M.S.H. Qureshi (as his Lordship then was) after surveying the relevant case-law on the subject and particularly relying upon Mst. Bashiran Bibi v.
S.H.O. Police Station Shorkot PLD 1978 Lah. 1323, Ghulam Siddique v. S.H.O. Saddar, Dera Ghazi Khan PLD 1979 Lah. 263 and Jamshad Ahmad v, Muhammad Akram Khan 1975 SCMR 149 came to the conclusion that if "what the petitioner alleges would constitute a distinct grievance not covered by the F.I.R. Already recorded by the police, it can be argued that the petitioner is entitled to the recording of an F.I.R. At his instance. The entitlement, nevertheless, is not absolute". Having taken this view, his Lordship, on the facts of that particular case, declined in exercise his discretionary jurisdiction and to issue the direction for the registration of the counter-case. Operative part of the judgment appearing at page 143 of the Report is reproduced below:- "From the above, it appears that normally the law does not contemplate the recording of another F.I.R. In respect of the same occurrence but the Court in a proper situation where the counter- allegations leveled are distinct and require investigation, may in its discretion direct the recording of a counter-F.I.R. Even otherwise, the relief to be granted under the constitutional jurisdiction is discretionary in nature and it cannot.Be granted in every case merely upon a petitioner showing that he is an aggrieved party. In the matter before me the petitioner's own grievance is that the police has been inimical towards him and that he had to bring a number of writ petitions and submit applications to the authorities against the police. It is also a fact that the allegations leveled are directed against the very persons who are to record the F.I.R. And to investigate the case. On the other side, the S.H.O. Respondent No,3 has in his lengthy comments assailed the conduct of the petitioner and in respect of his counter-allegations has commented that, 'As regards the allegations that the police also removed a brief-case containing Rs, 25,000 and two cheque books, it may be submitted that it is just a false, fabricated and mischievous attempt on the part of the petitioner to tarnish the image of the police'. The police has already entered report No, 18, dated 16- 10-1980 in the daily diary in compliance with rule 24.4 of the Police Rules and if the Inspector and other superior officers have not thought it fit to order investigation of case, it will be futile to expect that they would do so if the case is registered by entering an F.I.R. In such a situation, a better and more efficacious alternative available to the petitioner would be the institution of a complaint before a Magistrate. I am, therefore, of the view that whatever be the merit of the petitioner's case, a writ in the nature of mandamus need not issue. I, therefore, dismiss the petition in limine'.
6. View expressed in Mst. Bashiran Bibi v. S.H.O., quoted in the afore-referred case of Malik Muhammad Aslam may also be reproduced with advantage:- "The High Court cannot, while directing registration prohibit the S.H.O. From investigating the case nor this Court has jurisdiction to transfer the investigation. If the S.H .0. Is inimical to the petitioner on account of any interest in the accused persons, he is likely to spoil the case of the petitioner even in the first few Ziminis which he would be bound to record immediately after the registration of the case. Several complaints have been made to this Court after a direction for registration of case in the form of subsequent writ petitions and contempt applications that in such like cases the police tries to spoil the case of the complainant as a measure of revenge. Correction during investigation then becomes impossible. In the circumstances like those explained by the learned counsel the remedy by filing a complaint directly 'before the Magistrate is more effective and efficacious. While on the one hand if a case is registered the investigation remains in the hands of the opponents of the complainant including a prejudiced police officer, on the other hand, the control of the prosecution through a preliminary enquiry by a Magistrate remains in the hands of the complainant and the counsel conducting the case. The difficulty often expressed with regard to a Magistrate dealing with such like cases, is regarding some functions which the police can perform during the investigation. For example, in this case also learned counsel has pointed out that during alleged rape committed on the petitioner by several persons she was forced to thumb- mark some documents and according to the learned counsel it would be possible only for the police to recover those documents and produce them in Court as corroboratory pieces of evidence. There is nothing in this connection which the police can do and which the Magistrate cannot get it done through the police under his own direction and control. The Criminal Procedure Code gives vast powers to a Magistrate, when dealing with criminal trial at the enquiry stage."
7. In the instant case, occurrence with respect of which counter version has been set up by the petitioner, took place in January, 1983. Immediately after the occurrence, police registered the case at the instance of the complainant party therein and after necessary investigations, challaned the petitioner and his co-accused. That case is now pending in the Court of learned Additional Sessions Judge, Gujranwala and according to the learned counsel for the respondents, case had also been -fixed for prosecution evidence but was adjourned on account of the pendency of present writ petition. Petitioner filed the present writ petition in December, 1983 i.e, about a year after the aforesaid occurrence. In these circumstances, any direction for registration of the counter-case. Would only result in delaying the decision of the criminal case already pending against the petitioner and his co-accused. Furthermore, petitioner's own grievance is that the respondent S.H.O. In collusion with other respondents "involved the petitioner and others in that case". I also notice that the respondent S.H.O. In his parawise comments has adversely commented on the counter-allegations made by the petitioner. He has strongly contradicted the petitioner's version by stating that "the occurrence took place in the house of the complainant which was forcibly taken into possession by the accused party a year back from this occurrence The facts narrated in the writ petition are quite false and frivolous. It is concocted story and no such occurrence had taken place as mentioned in this writ petition". It is further stated in the comments that "the petitioner was arrested in this case on 1-2-1983 and no injury was found on his person". In the face of this firm position taken by the respondent S.H.O., issuance of any direction may not be of any use to the petitioner as envisaged in the case of Mst. Bashiran Bibi afore-referred and in the circumstances, filing of a complaint by the petitioner may be more effective and efficacious.
In view of the circumstances aforementioned and particularly the fact that the challan against the petitioner and his co-accused had already been submitted in Court and the case had even been fixed for prosecution evidence which could not be recorded owing to the pendency of this writ petition, I do not feel persuaded to issue the direction sought for by the petitioner, in exercise of my constitutional jurisdiction which is discretionary in nature. Writ petition is, therefore, liable to be dismissed and the same is hereby dismissed with no order as to costs in the circumstances of the case.