1. ' The petitioner Shahbaz Ali through this petition has sought following reliefs:--
(a) That this Honorable Court be pleased to direct the S.H.O., Police Station, Ghaibidero to lodge the F.I.R. Against the accused persons whose names are mentioned in paras. Nos.6 and 7 of the petition and to recover the person kidnapped by the accused persons.
(b) To direct the respondent No,2 to order the investigation of the abovesaid crime through an Independent Officer not below the rank of A.S.P. And after necessary investigation the accused be sent to face the trial before the Court having investigation jurisdiction.
(c) To direct the accused Nawabzada Sardar Khan Chandio and others to pay the compensation for the loss which has been caused by the petitioner, his father and other villagers by fire.
(d) Any other relief available under the circumstances of the petition be also granted to the petitioner.
2. ' The facts as set forth in the petition are that petitioner is an agriculturist and is cultivating his agricultural land. The Prime Minister of Pakistan allotted agricultural land in Deh Jagir No,6 Chaks Nos.33, 34 and 37, Taluka Kambar, District Larkana to the father of the petitioner and they were put in physical possession of the same. Due to the allotment of lands, the Jagirdars of the area particularly Nawabzada Sardar Khan Chandio son of Nawab Shabir Ahmed Chandio, M.N.A. Has been annoyed with petitioner's father, brothers, his cousin Hubdar Ali and other Haries of different villages who were allotted lands. Due to the water logging and rainy water coming from Baluchistan and closure of all canals, the land of the petitioner's father has been turned into lake.
3. The fish has been grown in the water which the allotted used to catch. The land in question is a surveyed one and never remained the property of Fisheries Department. Prior to allotment Nawabzada Sardar Khan Chandio through fishermen was catching and selling the fish in the market and after allotment the new allotted are not permitting him to do whereupon he has got annoyed. On 26-10-1998 the said Nawabzada Sardar Khan wrote a letter to one Fakir Ali Murad directing him to produce the petitioner's father, Haji Allandad, Allah Fateh and Khan before him. The said Fakir Ali Murad conveyed the desire of said Nawabzada Sardar Khan to the father of the petitioner and abovenamed persons, but they refused to appear before him. On this Allah Wasayo Massan, at the instance of the said Nawabzada Sardar Khan, duly armed with deadly weapons, went to the village Bagri Mour and threatened the petitioner's father and other villagers namely Qaiser Khan, Abdul Fateh, Chandio Khan, Abdul Hafeez and others in order to get the vacant possession of the lands. The villagers made such complaint to the Commissioner, Larkana who directed the Deputy Commissioner, Larkana, whereas Deputy Commissioner, Larkana directed the S.D.M., Kambar for appropriate action in the matter, but no action was taken by the S.D.M. On 8-12- 1998 the petitioner's father and other allottees met the Commissioner and apprised him of the threats issued by the said Nawabzada Sardar Khan and also non-compliance of his orders by the S.D.M., Kambar. The Commissioner assured them of issuing directions for doing the needful in the matter.
4. ' It is further averred that on 12-12-1998 at about 4-00 p.m. Nawabzada Sardar Khan alongwith Allah Wasayo Massan, Fazal Muhammad Massan, Gulab son of Winder Chandio, Manan son of Shah Nawaz Radhani Chandio, Muhroo alias Mashoque Ali Mirani Chandio, his body guard Makhan Khan Nathrani Chandio, Mukhtiar alias Fauji Hashani Chandio, Ashraf son of Abdul Hameed Chandio, Abdullah son of Winder Khan Chandio, Ghous Bux Chandio, Nazar Muhammad son of Raheemdad Marfani Chandio, Mir Muhammad son of Winder Khan Chandio, Muhammad Sadiq son of Khalifo Chandio and 25 persons duly armed with K.Ks. Went to the village of petitioner on their Boats and made firing in the air for causing harassment to them and kidnapped Mour Fakir, his son-in-law Pathan, Abdul Latif, his sons Mumtaz Ali and Fida Hussain and also took away two licensed guns.
5. They set ablaze the houses of petitioner, his father and other villagers and then fled away in their boats. This task was accomplished within half hour. The petitioner approached the Police Authorities of Police Station, Ghaibidero for report, but police refused to register the same.
6. ' It is said that on 14-12-1998 said Nawabzada Sardar Khan along with 20 unknown persons duly armed with K.Ks. Went to the shop of Hubdar Ali the cousin of petitioner and severely assaulted him.
7. He directed him that he should ask the petitioner and other villagers to vacate the possession and wind up their business of fishing else they would be killed. The petitioner and Hubdar Ali went to police station for lodging the report, but police refused to register the same. The villagers are nearest relatives of the petitioner and are allottees, they also made complaints to Prime Minister, Governor of Sindh, but so far no action has been taken in the matter. On 16-12-1998 petitioner remained at his house and sent his relatives to again approach the Commissioner, Larkana for taking legal action against respondents. The Commissioner assured for action but no action has been taken so far by the Commissioner or D.I.-G. Police, Larkana. The petitioner party has got published many articles in news papers regarding atrocities suffered by them at the hands of respondents. It is also stated that when Nawabzada Sardar Khan came to know with regard to the complaint made by the petitioner, his relatives and other allotted, he managed with police and got registered many cases against them.
8. ' The respondent No,1 has filed his comments, wherein he hag stated that petitioner or anyone else from his party never went to Police Station Ghaibidero for lodging any report nor respondent No,1 has refused to register the same. He has further stated that if the petitioner or any other person appears at the police station for the registration of F.I.R. And if any cognizable offence is made out he is prepared to register the F.I.R.
9. ' The respondent No,2 has stated in his comments that some cases were registered against the petitioner and others and after investigation those cases were disposed of as cancelled class. He has further stated that if any order for registration of F.I.R. Is passed the compliance would be made by him.
10. ' Learned counsel for the respondents Nos.16 and 17 has placed on record the report of Commissioner in C.P.D-1040 of 1998 Ali Asghar v. Government of Sindh and others, lease grant order of Hamal Kachery and Ghaibidero lakes from 1998-99 to 30-6-2001 by the Government of Sindh, Forest and Wildlife Department, copy of challan showing the payment made by lessee in the National Bank of Pakistan, Main Branch, Larkana relating to lease amount, order of District Magistrate and S.S.P., Larkana whereby police force was sanctioned and deputed on the disputed site, statement issued by Divisional Forest Officer, Larkana showing fishing contract granted to respondent Asghar Ali from 1998-99 to 30-6-2001 in respect of Kambar (A) and Larkana (A) range consisting of Mirzapur Jagir admeasuring 53, 329 Acres, Badem 25210 Acres and Kachhri 1244 Acres and also site map issued by Divisional Forest Officer. Larkana.
11. ' Learned counsel for the petitioner has reiterated the averments made in the petition and has stressed for the grant of reliefs prayed him in the petition.
12. ' Learned counsel for respondents Nos.4, 16 and 17 have contended that no documentary proof with regard to the grant/allotment of the land has been placed/annexed with the petition from which it could be deduced that the disputed land was allotted to petitioner's father and other co-villagers; that fact of the possession of the land is belied by the report of the Commissioner appointed by this Court in Constitutional Petition No,D-1040 of 1998 re: Ali Asghar v. Government of Sindh and others; that letter purported to be written by Sardar Khan does not contain any threat; that no incident has taken place as alleged in the petition and in order to harass, coerce and mould the proposed accused for ulterior motive present petition has been filed. It is further argued that the copies of the documents placed on the record show that it is a lake which is spreaded over the area of miles and fishing right of lake is on lease with respondent/ proposed accused Ali Asghar son of Nabi Bux Mirbahar upto 20002001 which was granted by Forest and Wildlife Department, Government of Sindh for Rs,2391,174; that due to highhandedness and fear of the petitioner party, the proposed accused Ghulam Asghar has got sanctioned and deputed police force at the disputed lake in order to avert the apprehended violation of law/order at the hands of petitioner party.
13. ' Mr. G.A. Shahani, learned Additional Advocate-General appearing on behalf of official respondents has contended that the petition is not maintainable under the law; that no documentary proof has been placed on the record from which it could be deduced that any cognizable offence was committed; that the petitioner never went to police station for registration of report and allegation regarding non-registration of F.I.R. Is false.
14. I have heard Mr. Inayatullah Morio, learned counsel for the petitioner, Mr. Muhammad Bachal Tonyo, learned counsel for respondent No,4 and Mr. Asif Ali Abdul Razak Soomro learned counsel for respondents Nos.16 and 17, whereas Mr. G.D. Shahani learned Additional Advocate-General for the official respondents and also perused the material placed on record.
15. It is well-settled that the Constitutional jurisdiction is purely discretionary and discretion cannot be exercised as a matter of course, but it is to A be exercised with great care and caution. The power under Article 199 is not intended for deciding the disputed facts and thwart the procedural law. The clause (1)(a)(i) of Article 199 lays down that subject to the Constitution if this Court is satisfied that no other adequate remedy is provided under law then this Court can direct for performing anything which is required, by law and restrain from doing anything which is not permitted or is contrary to law and also can declare any act of no legal effect which has been done or taken without lawful authority.
16. ' In this context, I am fortified by the decision in case of Hasan Din Chishti v. Chief Engineer, WAPDA reported in '1970' SCMR 58, Wasimul Hague v. Government of Sindh through Secretary, Hoine Department, Karachi and 2 others reported in PLD 1975 Kar. 1, Altaf Hussain v. Government of Sindh through Home Secretary, Government of Sindh and another reported in PLD 1997 Kar. 600 and Mst.
17. Qamar v. The S.H.O., Police Station Phulleli, Hyderabad and others reported in 1997 PCr.LJ 752.
18. Looking towards the peculiar facts and circumstances of the case, I am of the considered view that the petitioner has got adequate and efficacious remedy by way of direct complaint as provided under Chapters XVI and XVII of the Code of Criminal Procedure, 1898. Consequently, this petition is dismissed with no order as to costs.