' The petitioner, who is a house wife, has filed this petition seeking direction against the respondent No,1 to take legal action against the respondents Nos.2 to 5 and to register an F.I.R. Against them for the offence they allegedly committed on 28-5-1995 at about 10-30 a.m.
2. It is alleged in the petition that the petitioner's daughter, Saeeda, was the student of St. Michael School; that there was a petty dispute between petitioner's said daughter and the respondent No,4, Mrs. Seema Nayyar in respect of some teaching problem as a result of which the respondents Nos.2 to 5 on the abovementioned date trespassed into the house of the petitioner duly armed with sticks, ransacked the furniture and other household articles, manhandled and caused physical beating to the petitioner, her husband, her abovementioned daughter and her son namely Samad.
It is further alleged in the memo. Of the petition that the petitioner's husband went to Ucton Police Station to lodge a report but the same was not lodged by the respondent No,1. As stated in the petition, another F.I.R. Bearing No,275 of 1995 was lodged under section 337-A, P.P.C. In paras. 6, 7 and 8, it is alleged that the petitioner and her husband are running from pillar to post seeking registration of the F.I.R. But respondent No,1 and the other high police officials are not performing their legal duty.
3. Pre-admission notices were issued to the respondents pursuant to which S.H.O. Police Station Clifton, Karachi has filed his paradise comments wherein it is admitted that husband of the petitioner did appear before the S.H.O. On 28-5-1995 for which a non-cog. Report was registered and he was referred to medical examination to Jinnah Postgraduate Medical Centre. It is further admitted in paradise comments of respondent No,1 that on 17-6-1995, a supplementary report was received in respect of respondent No,2 Bashir Ahmed and the injuries. Received by him were declared to be Shajjah-i-Hashimah and, therefore, an F.I.R. Under section 337-A, P.P.C. Was registered bearing No,275 of 1995. In respect of the complaint of the present petitioner's husband, it is stated that the final medical report is still awaited. It is further stated that full medical board was constituted by the Home Department, Government of Sindh and Khawaja Muhammad Saeed, husband of the petitioner was asked to appear before the same on 5-11-1998 but instead of appearing before the said medical board, his wife has rushed to this Court and has filed this Constitutional petition on 3-11-1998. Muhammad Amin Lakhani, U.M. Kamal and Muhammad Ismail Memon, Advocates for the respondents.. It was argued by Mr. Abdul Khalil that once petitioner's husband had appeared before the S.H.O. Police Station Clifton, it was his statutory duty to record F.I.R. Of the incident narrated from the petitioner's side. It was further argued that the case as reflected in F.I.R. No,275 of 1995 is a counter-blast to the petitioner's version. Mr.. Abdul Khalil has placed reliance on the cases Mrs. Ghanwa Bhutto and another v. Government of Sindh and another PLD 1997 Kar. 119; Sher Khan v. The State 1996 PCr.LJ 668; Muhammad Ilyas v. S.H.O. P.S. Badomalhi, District Narowal and 3 others 1997 M LD 1527 and Raja Gulzar Ahmed v. Mushtaq Ahmed and 7 others PLD 1998 Lah.
111. It was argued by Mr. G.M. Kamal, learned counsel for the respondent No,2 that the petitioner has an alternate remedy to file a private complaint and that the petition has been filed with mala fide and ill-intention to harass the respondents. Mr. Muhammad Amin, Lakhani, learned counsel' for respondents Nos.2 to 5 has argued that the trial of cases arising out of F.I.R. No,275 of 1995 is at the concluding stage before the Court of IIIrd Judicial Magistrate, Karachi South and that the petitioner has filed the instant petition after a delay of more than three years and five months, and therefore, the same is hit by the principles of laches. He has placed reliance on the cases Sajjad Ahmad v.
S.H.O., Police Station Kunjah and another PLD 1993 Lah. 18 and Altaf Hussain v. Government of Sindh through Home Secretary, Government of Sindh, Karachi and another PLD 1997 Kar.
600. It was argued by Mr. Muhammad Ismail Memon, learned counsel for the State that S.H.O. Had categorically mentioned in para.8 of his parawise comments that the moment medical report from the medical board is received, he will lodge F.I.R. Under relevant section of law. It was suggested by Mr. Memon that in view of such statement this petition is liable to be dismissed.
5. The rule laid down in the cases of Mrs. Ghanwa Bhutto and Muhammad Ilyas (supra) is not attracted in the circumstances of the present case as in those cases the petitioners were seeking registration of second F.I.R. In respect of the same incident, while in the instant petition, the petitioner is seeking registration of an F.I.R. Of a counter-version. In the case of Raja Gulzar Ahmed (supra), the petition was filed in the year 1997 and was decided on 8-9-1997 pertaining to the allegations that on the night between 22nd and 23rd May, 1997, some offence was committed for which the petitioner had approached the Lahore High Court for registration of F.I.R. In the instant case, A the petitioner has admittedly approached this Court after a delay of more than 3 years and 5 months. The case of Sher Khan (supra) is also of no assistance to the petitioner's case as it refers to the consequence of registration of F.I.R. After some delays in a' criminal case. Here, the question is not that the F.I.R. Was lodged at belated stage but the petitioner is seeking a direction through a Constitutional petition for registration of F.I.R. After unexplained long delay. Indeed, there is no period or time prescribed for initiating a criminal prosecution but for invoking Article 199 of the Constitution, 1973, a petitioner who is seeking a direction/writ through instant proceeding, is required to act vigilantly and without unnecessary delay. The petitioner was not able to explain such delay. It is admitted by the petitioner that the final medical report is still awaited. In absence of medical report it would be difficult to ascertain the nature of offence. It is doubtful that even after passing of more than three and a half years there would be still traces of the injuries allegedly suffered by the petitioner and her husband.
6. In the above circumstances of the case, I am of the considered view that the rule laid down by a Division Bench of this Court in the case of Altaf Hussain (supra) is fully attracted where Constitutional petition seeking registration of F.I.R. Was dismissed with the following observation:-- "6. The cases referred to by us in this judgment. Therefore, leave no doubt that whenever an adequate remedy in the form of a private complaint is available to the petitioner, relief sought by him in the petition may be declined to him. In the present case, the petitioner could have filed a private complaint before the Court having jurisdiction in the matter in case the complaint sent by him to the police was not registered or he was dissatisfied with the investigation of the case, carried out by the former. Apart from the foregoing, when information is received by a Police Officer in charge of a police station regarding commission of a cognizable offence, the allegations must be found by him to be prima facie correct before an F.I.R. Is registered. But where allegations are made, which, without making an elaborate investigation into them, are found hard to believe, provisions of section 154, Cr.P.C. May not be attracted in such case..."
7. On the point whether the second F.I.R. Which is a counter-version of the first F.I.R. Is to be registered by the S.H.O. As part of his statutory duty, I would like to draw the attention of the Advocate to the case of Riaz Ahmad v. I.-G. Police and others 1991 PCr.LJ 6 where it was held by a learned, Single Judge of Lahore High Court that where in an F.I.R.. The injury suffered by the accused party had been explained, the registration of counter-F.I.R. Was not called for. On the same point a Division Bench of Lahore High Court in the case of Mushtaq Ahmad v. Station House Officer, Police Station Munawan, Lahore 1984 PCr.LJ 1454 made the following observations in respect of registration of the second F.I.R.:-- "3. When a case has been registered in respect of an occurrence, no second case can be registered giving counter-version thereof by the accused persons. If this were so in each criminal case, there will be one F.I.R. Lodged by the complainant party and another by the accused because it is not likely that any of the accused will not have a counter-version of the allegations made against him in the F.I.R. That would mean that for each crime two F.I.Rs, should be registered. This, of course, is not the law. Learned counsel for the appellant referred to Muhammad Ibrahim v. S.H.O.
Police Station Mansehra and another PLD 1983 Pesh.
229. A perusal of the judgment would show that such a direction was declined and the writ petition was dismissed. It is by now clearly established law that no direction can be issued for registration of a case when an F.I.R. Has already been registered in respect of the occurrence for giving counter-version of the other side. The appellant has otherwise alternate remedy by way of filing a complaint."
8. 1 am fully conscious of the rule laid down by a learned Division Bench .Of this Court in the case of Mrs. Ghanwa Bhutto (supra) where a direction was issued to the concerned Police to register the third F.I.R. But of the same incident. There was no question of counter-version (as advanced by the accused) was involved. The petitioner of that case was the widow of deceased Mir Murtaza Bhutto who alongwith his other colleagues was killed in an encounter as claimed by the police. Several case-law were considered in the case of Ghanwa Bhutto but the reasons which prevailed for issuing direction are reflected in para. (pages 128-129) of the reported case which reads as follows:-- "... Therefore, is registration of a third F.I.R. Warranted under the law? The circumstances of the present case, however, indicate that while the first F.I.R. Was registered at the instance of a Police Officer who was suspected of being an accused himself in the case by the petitioners, the second F.I.R. Were registered at the instance of Asghar Ali, the private servant of petitioner No,1, after four days of the occurrence when he was still in the custody of the Police. Therefore, the contention of the petitioners that the two F.I.Rs, registered by the police do not reflect the true facts of the case, does not appear to be unreasonable. It is also pertinent to point out that the petitioners wanted to name certain Police Officers as some of the culprits, who, according to the petitioners, had participated in the said crime and a definite role has been attributed to them in the proposed F.I.R.
Therefore, a prima facie case appears to have been made out against the said persons for the purpose of recording an F.I.R. However, some other Police Officers have been named as suspects but no definite role has been attributed to them by the petitioners. Therefore, the petitioners have failed to satisfy the conscience of the Court so far as the said Police Officers are concerned. We are, therefore, firmly of the view that circumstances of the present case are distinguishable from those of the cases earlier decided by this Court, reference to which is made in this judgment."
9. In the instant case, there is an additional ground for which I am not inclined to issue direction/writ as the case arising out of F.I.R. No,275 of 1995 is sub juice before the Court of IIIrd Judicial Magistrate South and has reached its final stages before the said Trial Court and the contents of present petition, being a counter-version, will definitely prejudice the case of that complainant and may affect. The findings of the said Court. The petitioner should have approached this Court much earlier preferably the moment charge was framed in that case and the prosecution was asked to lead evidence. At that moment, it was right opportunity to file a private complaint. The petitioner remained inactive and acquiesced in the proceedings to reach its final stages and then filed this petition. Such conduct of the petitioner disentitles her from equitable and discretionary relief.
10. With the above observations this petition is dismissed in limited with no order as to costs.
However, it will be open to the petitioner to resort to any other legal remedy, if available. Needless to observe, that the Court of IIIrd Judicial Magistrate, South Karachi, will not be influenced by any of the comments made hereinabove while disposing of the case arising out of Crime No,275 of 1995 of Police Station Clifton, Karachi.