1. ' By this Constitutional petition, the petitioner has sought the following relief:-- "(a) To direct respondent 3 to register F.I.R. Of the petitioner against the accused and to investigate it according to law.
(b) To award costs of the petition.
(c) To grant any other relief as deemed fit and proper in the circumstances of the case."
2. ' The brief facts as disclosed in the petition are that proposed accused Nazir son of Lal Bux Bhutto and his partymen are on inimical terms with the petitioner party over water rotation and dispute over agricultural land. On 5'-12-2000 one Muharam on the side of petitioner sustained injuries at the hands of one Hafeez Bhutto and others and such non-cognizable report was lodged with respondent 3. Muharam was admitted in Government hospital at Pir-Jo-Goth. On 6-12-2000, the petitioner alongwith Arbab, Murid, Ghulam Rasool and Muhammad Hashim proceeded for Pir-Jo- Goth to see Muharam. One Mumtaz Bhutto had also joined them, as he had to appear in B.A. Part II Examination at Khairpur. The petitioner and his relations stated hereinabove were waiting at the bus stop to fetch the bus when at about 8 a.m., proposed accused Jan Muhammad son of Hameed Bhutto, Nazir son of Lal Bux Bhutto, Hafeez son of Qurban Bhutto and Qurban son of Ghulam Muhammad Bhutto came there in a car. Jan Muhammad was armed with revolver, Nazir with mouser, Hafeez with &tin and Qurban with hatcher. At that juncture, proposed accused Eidal son of Ghulam Muhammad, Gulzar son of Ghulam Muhammad Manthar son of Ghulam Muhammad, Mumtaz son of Ghulam Muhammad, Ali Dino alias Phulloo son of Sahib Dino, Dodo son of Sahib Dino and Wazir son of Qurban Bhutto also reached there. Eidal was armed with a hatchet while Gulzar, Manthar and Mumtaz were armed with Lathies; Allandino alias Phuloo, Dodo and Wazir were armed with guns. The accused stepped down from the car. Accused Nazir instigated co- accused to launch attack upon the petitioner party. Upon his instigation. Hafeez fired from his gun, which hit Arbab who fell down raising cries. The rest of the accused also fired. Thereafter, accused went away with their weapons.
3. ' Mumtaz received injury on his head and Murid on his person. In the firing made by the accused party. Jan Muhammad Bhutto died and some other persons also received injuries on their side. The petitioner removed the deceased to police station alongwith injured Murid and requested S.H.O. For registration of report but he declined by expressing that he will register the report of only rival party of the petitioner as he has received such orders from his high-ups.
4. ' It is further stated that the petitioner was kept on false hopes by the S.H.O. He demanded illegal gratification for registration of F.I.R. But petitioner party failed to fulfil the exorbitant demand of respondent 3. On the next day, petitioner went to S.S.P. Khairpur and apprised him of the incident as well as the conduct of his subordinates. He promised to do the needful but in spite of that he failed to take any action in the matter. It appears that he was also won-over by the accused party. The petitioner apprised the newspaper representatives and sent telegrams to higher authorities but so far no heed has been paid to his complaint.
5. ' In pursuance to notice, the S.H.O. Respondents 2 and 3 have filed their statements and proposed accused also have filed their counter-affidavit.
6. ' The respondent 3 has stated in his statement that on 6-12-2000 one Qurban Ali son of Ghulam Muhammad Bhutto lodged report vide Crime No,114 of 2000 under sections 302, 324, 147, 148, 149, 427 and 120, P.P.C. Against proposed accused Mumtaz and some other persons i.e, Aijaz, Atta Muhammad, Murid, Mushtaq, Suleman, Samar, Raja and Arbab deceased. It was alleged in the F.I.R.
7. That dispute over matrimonial affairs existed between the parties and the accused stated hereinabove armed with weapons launched attack upon Jan Muhammad Bhutto when Jan Muhammad Bhutto alongwith Hafeez, Ali Dino and Nazir were going in their car to Khairpur. The incident occurred near their houses. In the attack, Jan Muhammad Bhutto was murdered and four females i.e, Mst. Soni, Mst. Karimat, Mst. Rabel and Mst. Noor Jahan who tried to save Jan Muhammad were seriously injured and also four males i.e, Saindad, Abdul Hafeez, All Dino and Nazir Ahmed sustained injuries at their hands. It was further alleged that conspiracy was hatched by Hakim Ali and Meenhal Bhutto. In the scuffle, Arbab alias Kandero Bhutto received fire-arm injury by his own gun and died. The gun in broken condition was lying by the side of the dead body.
8. ' It is further averred that the contents of the petition are incorrect. The petitioner party was aggressor. They launched attack upon deceased Jan Muhammad near his house with the result Jan Muhammad was murdered and the women-folk as well as four persons named hereinabove received injuries. None from the side of the petitioner party received injury except Arbab alias Kandero who died due to the fire of his own gun, which was lying at the scene of offence.
9. ' It is further averred that the prayer of the petitioner party is not legal. They want to lodge the report as counter-blast to the F.I.R. Of proposed accused, which has been already lodged against them.
10. The proposed accused are innocent and they have not committed any offence.
11. ' Respondent 2 i.e, S.S.P. Khairpur has stated in his statement that the report of S.H.O. Police Station Pir-Jo-Goth stated hereinabove is correct and the petitioner party is aggressor. They are trying to lodge counter-F.I.R. As counter-blast to the case of proposed accused.
12. ' The proposed accused Qurban Ali in his counter-affidavit denied the allegations made against them in the petition. He stated that no dispute of proposed accused Nazir Ahmed son of Lal Bux was existing over the water rotation and agricultural land. On 28-2-1997 one Allah Bachayo son of Ahmed Bux the relative of the petitioner filed an F.I.R. Being Crime No,10 of 1997 at Police Station Pir- Jo-Goth, District Khairpur under Articles 11 and 16, Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with sections 144-D, 147, 148 and 149, P.P.C. Against the proposed accused deceased Jan Muhammad, Hafeez, Wazir and others. The F.I.R. Stated hereinabove was lodged by the petitioner party in respect of the abduction of one Mst. Salma. The said case ended in acquittal. After the disposal of case, one Mumtaz Ali Bhutto intervened and brought amicable settlement between the parties on Holy Qur'an. In spite of that the petitioner party bore grudge. On 23-1-1998, the petitioner party consisting of Allah Bachayo (complainant of Crime No,10 of 1997), his brother Mohib, Mumtaz (P.W.) cited in petition) and others attacked upon the deponent and his party men as such the deponent lodged F.I.R. Being Crime No,3 of 1998 at Police Station Pir-Jo-Goth under sections 337-A(i), 337-F(i), 147, 148, 149 and 504, P.P.C.
13. ' The above matter was patched up by the parties on the intervention of the Nekmards of the community. The compromise deed was reduced in writing and it was signed by both the parties and it was attested by the learned Civil Judge and F.C.M., Pir-Jo-Goth.
14. ' It is further averred that in fact on 6-2-2000 at about 8 a.m. Petitioner party consisting of Mumtaz son of Adho, Sarwar son of Murad armed with hatchets, Aijaz son of Adho armed with T.T. Pistol, Ali Muhammad son of Adho armed with SBBL gun, Murid son of Budho, Mashooq son of Jadal, Suleman son of Soomar and Raja son of Bungul armed with Lathies, Arbab alias Kandero son of Ali Bux armed with DBBL gun attacked upon the proposed accused deceased Jan Muhammad, Abdul Hafeez, Ali Dino, Nazir and one Saindad when they hardly covered a distance of 100 paces from their houses in their car. On the fire-arm reports and hue and cry raised by Jan Muhammad and others, so many villagers including women-folk rushed to the place of incident and tried to rescue Jan Muhammad and others with the result Jan Muhammad received fatal injuries and he died on the spot whereas Mst. Soni, the mother of deceased Jan Muhammad, Mst. Karimat alias Zuhra wife of deponent Qurban Ali, Mst. Rabel wife of Lal Bux the sister of deceased Jan Muhammad. Mst. Noor Jahan the wife of deceased Jan Muhammad, Nazir and Saindad also received serious injuries at the hands of accused. The inmates of the car Abdul Hafeez and Ali Dino also received injuries in the incident at the hands of the petitioner party. Arbab one of the assailants received injury from his own gun during the scuffle and died on the spot. Arbab was not killed by the proposed accused.
15. Except Arbab, no one else received a single scratch in the incident. The deponent went to Police Station Pir-Jo-Goth alongwith injured where he lodged the F.I.R. They were referred to the hospital for medical treatment and certificate. The police visited the place of incident and saw the dead bodies of deceased Jan Muhammad and Arbab lying on the spot. The Mashirnama of the place of incident was prepared and dead bodies were despatched by the police to the hospital for post- mortem. The deceased Jan Muhammad received 8 injuries out of which 3 injuries were caused by firearm, 4 injuries by sharp-cutting weapon and one injury by hard and blunt substance.
16. ' In the further pleas, it is contended that the petitioner has not filed this petition with clean hands and he has concealed the true/important facts and he has planted a false story in order to harass and humiliate the deponent and co-accused with intent to pressurize them to withdraw the murder case registered against them. It is further contended that the petition is liable to be dismissed.
17. ' The petitioner in his rejoinder to the statements of the respondents 2 and 3 has reiterated the contents of the petition and stressed that the respondent 3 is duty-bound to lodge the report of the petitioner party. No rejoinder has been filed to the counter-affidavit filed by the proposed accused Qurban Ali.
18. ' I have heard Mr. Imdad Ali Awan, learned counsel on behalf of the petitioner assisted by Mr. Shaikh Amanullah, Advocate. He has relied upon the following case-law:--
(1) 1989 PCr.LJ 1129, (2) 1989 PCr.LJ 1945 (Karachi), (3) 1993 PCr.LJ 1286 (Karachi) and (4) 1999 PCr.LJ 512 (Karachi).
19. ' I have also heard Mr. S. Mushtaq Hussain Shah learned counsel on behalf of the proposed accused. He has placed reliance on the following case-law:--
(1) PLD 1988 Kar. 521, (2) 1990 PCr.LJ 2006 and (3) 1993 PCr.LJ 1056.
20. ' I have also heard Mr. Sher Muhammad Shar, learned Assistant Advocate-General, Sindh on behalf of State. Learned counsel for proposed accused and learned Assistant Advocate-General, Sindh have opposed the prayer of the petitioner, I have also perused the material placed on record.
21. The material placed on record shows that the contention of the petitioner was considered by the Investigating Agency during the course of investigation but it was proved false. The averments made by the proposed accused in their counter-affidavit have gone unchallenged as no rejoinder to it has been filed by the petitioner.
22. ' It is well-settled that writs are not issued as of right but are purely discretionary. The discretion conferred upon the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 cannot be exercised as a matter of course. The High Courts act in aid of law and not to hamper the smooth working of the agencies established by law or to set up any hegemony in itself and thwart the procedural law. The superior Courts have always exercised this jurisdiction with restraint and used the discretion vested in them in consonance with the well-known and understood principles recognized by law.
23. The Constitutional jurisdiction is not an additional or alternate jurisdiction. The Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 lays down that subject to the Constitution if this Court is satisfied that no other adequate or efficacious remedy is available under law then only this Court can issue appropriate writ. However, in many reported and unreported cases, it is observed that the existence of alternate remedy does not affect the writ jurisdiction. In my humble view, the powers under writ jurisdiction could only be exercised where the evidence to prove the commission of alleged offence cannot be collected except by the police agency but where the entire evidence to prove the commission of offence is available, with the complainant. The remedy could be obtained by way of a direct complaint. In the case in hand, the entire evidence is available with the petitioner. The adequate remedy is provided under section 190, Cr.P.C. Read with section 200, Cr.P.C.
24. To section 203, Cr.P.C. The petitioner can avail of remedy before the proper forum provided under law.
25. The authorities, relied upon by the learned counsel for the petitioner, are distinguishable from the facts and circumstances of the present case.
26. Looking towards the peculiar facts and circumstances of the case, I am of the considered view that present petition merits no consideration and it stands dismissed with no order as to costs.