1. ' By this Constitutional petition, the petitioner Muhammad Ibrahim has sought the registration of F.I.R. Against the proposed accused Mushtaq, Altaf Hussain, Hassan Ali, Abdul Majeed, Ghulam Hyder, Atta Hussain, Muhammad Hussain, Nasrullah, Akhtar Hussain, Wali Muhammad, Ghulam Hussain and Dhani Bux.
2. ' The brief facts of the prosecution case as disclosed in the petition are that. On 7-3-2001, petitioner alongwith Mahmood Hussain Shalgari, Fateh Muhammad and Lakhmir Lagharies had gone to see their lands. At about 7 a.m. The proposed accused Mushtaq, Altaf Hussain and Nasrullah armed with guns, Hassan Ali, Abdul Majeed, Akhtar Hussain and Wali Muhammad armed with pistols, Ghulam Hyder, Atta Hussain and Ghulam Hussain armed with lathier and Muhammad Hussain alias Major armed with hatchet, Dhani Bux empty handed came there. Proposed accused Dhani Bux prevented the petitioner from raising objection on the construction over the plot in front of the house of the petitioner. Proposed accused Dhani Bux instigated other accused and asked them not to spare and kill them. On his saying so, proposed accused Mushtaq and Altaf Hussain with intention to commit murder of the petitioner directly tired from their guns. The pellets hit two bullocks which were tethered in the land. Proposed accused Ghulam Hyder caused lathi blow to Lakhmir on his left eye and left leg. The petitioner raised cries which attracted the co-villagers, who came running, witnessed the incident and rescued the petitioner and victims. Thereafter, the proposed accused went away alongwith their weapons issuing abuses and making fire in the air.
3. One bull died on the same day and another sustained serious injuries.
4. ' The petitioner alongwith victims and co-villagers approached the respondent 2 and apprised him of the incident. He did not register the F.I.R. The petitioner also approached respondent 1 who directed respondent 2 for necessary action but no heed was paid to it.
5. ' Pursuant to the notice, the respondent 1, S.S.P. Khairpur filed the statements, the contents of the same are reproduced hereinbelow in extenso:-- "It is submitted that in this connection the report was called from S.H.O. Police Station Mirwah. Now he has submitted report vide his No,569, dated 22-3-2001 that this matter pertains to case F.I.R.
6. No,38 of 2001 under sections 324, 147, 148 and 149, P.P.C. Of Police Station Mirwah, which was registered on the complaint of Hassan Ali Leghari on 7-3-2001, against accused (1) Irshad, (2)
7. Qurban Ali (3) Muhammad Malook (4) Farman Ali (5) Madad Ali (6) Muhammad Aslam (7) Fateh Muhammad (8) Subhan Ali and (9) Lakhmir. S.H.O., Police Station Mirwah has further reported that above-named accused have caused fire shot injuries, hatchet and lathi injuries to complainant Hassan Ali and P.Ws. Altaf Hussain and Ayaz Hussain Leghari. He has further reported that due to the firing of above-named accused one bullock was killed and one injured. Hence the allegations in the petition of the petitioner are totally incorrect and he has preferred this petition only for get registering counter-case. He has further submitted that the above case is under investigation.
8. ' The report of S.H.O., Police Station Mirwah is comprehensive, hence I agree with it.
9. ' This is submitted as desired."
10. ' The respondent 2, S.H.O., Police Station Mirwah also filed the statement, contents whereof are reproduced hereinbelow in toto:--- "It is submitted that there is dispute in between the present petitioner and the proposed accused upon a plot as such just to maintain the law and order situation under control, Karvai under sections 107/151, Cr.P.C. Have been made against both the parties vide Karvai No,72/73, dated 17-3- 2001. Prior to this the present petitioner party assaulted upon proposed accused and used fire- arms with the result proposed accused Altaf Hussain, Hussain Ali and Ayaz Hussain sustained fire- arm injuries hence F.I.R. Crime No,38 of 2001 under sections 324, 147, 148, 114 and 149, P.P.C. Was lodged by one of the proposed accused Hussain Ali against accused Lakhmir and others on 7-3- 2001 which is under investigation.
11. ' The present petitioner intends to rope 12 persons of his rival parties in false case after seeking directions from this Honourable Court otherwise he has no cause of action the entire story in this petition has been fabricated and no such offence has taken place, however, in the light of above facts, if any order is passed by this Honourable Court, the same will be strictly complied with."
12. ' The petitioner Muhammad Ibrahim and one Moulvi Muhammad Hussain Fakir have filed affidavits wherein they have reiterated the facts disclosed in the petition and have disputed the statements of respondents 1 and 2.
13. ' I have heard Mr. Abdul Fatah Malik, learned counsel appearing on behalf of the petitioner, Mr. Imdad Ali Awan, learned counsel appearing on behalf of the proposed accused as well as Mr. Ghulam Dastagir A. Shahani, learned Additional Advocate-General, Sindh on behalf of the State.
14. ' Learned counsel appearing on behalf of the petitioner has placed reliance on the cases of 1.
15. Muhammad Latif v. S.H.O., Police Station Saddar, Dunyapur and 14 others (1993 PCr.LJ 1992),
2. Altaf Hussain v. S.H.O. And 2 others (1993 M LD 2059),
3. Ghulam Qadir v. The State and 2 others (1995 PCr.LJ 1239,
4. Muhammad Afzal v. Muhammad Ashraf and 15 others (1996 PCr.LJ (AJ&K) 489, 5.
16. Hamayun Khan and another v. Muhammad Ayub Khan and 4 others (1999 PCr.LJ 1706),
6. Haji Ahmad v. S.S.P. Rahimyar Khan and others (1997 PCr.LJ 2069) and 7. Raja Gulzar Ahmed v. Mushtaq Ahmed and 7 others (PLD 1998 Lahore 111).
17. ' Learned counsel appearing on behalf of the proposed accused has placed reliance on the cases of Yousif v. The State (PLD 1988 Karachi 521),
2. Wazir Ahmad v. S.H.O. Police Station, Mehboob Kalhoro and others (1990 PCr.LJ 2006) and 3. Unreported decision of this Court in case of Bangul v.
18. Province of Sindh and others (C.P. No, S.-1164 of 2000).
19. ' Learned Additional Advocate-General, Sindh has opposed the prayer of the petitioner and has placed reliance on the cases of Altaf Hussain v. Government of Sindh through Home Secretary, Government of Sindh, Karachi and another (PLD 1997 Karachi 600),
2. Mst. Qamar v. S.H.O., Police Station, Phuleli, Hyderabad (1997 PCr.LJ 752) and Shahbaz Ali Chandio v. S.H.O. Police Station, Ghaibidero and others (1999 PCr.LJ 1670).
20. ' The perusal of the material placed on record shows that the petitioner's party formed an unlawful assembly, duly armed with lethal weapons, by rioting launched murderous assault upon the proposed accused party with the result three persons on the side of proposed accused i.e, Hassan Ali, Altaf Hussain and Ayaz Hussain Leghari received injuries., One bullock was killed and another injured due to the attack launched by the petitioner's party. Such F.I.R. Vide Crime No,38 of 2001 was registered under sections 324, 147, 148 and 149, P.P.C. At Police Station, Mirwah.
21. ' In order to avoid breach of peace, proceedings under sections 107/151, Cr.P.C. Have been initiated by the police and the same are pending before the concerned Magistrate. The factum of the injuries sustained by the proposed accused party and registration of F.I.R. Against the petitioner party has been suppressed in the petition. It is stated by both the parties that matter is still under investigation.
22. ' The further perusal of material placed on record shows that the contention of the petitioner was considered by the respondent 2 and according to him, the entire story has been fabricated and incident did not take place as alleged by the petitioner's party.
23. ' It will be pertinent to reproduce hereinbelow, the observations of this Court in the case of Bangul v.
24. Province of Sindh and others (C.P. No,S-1164 of 2000):-- "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.
25. ' 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.0 to section 203, Cr.P.C. The petitioner can avail of remedy before the proper forum, provided under law."
26. ' In the case of Yousif v. The State (ibid), a D.B. Of this Court observed that once investigation is taken in hand on the basis of F.I.R. Registered, an Investigating Officer is competent to carry out the Investigation to a final even if subsequently it is found that real culprits are not the same as were mentioned in the F.I.R. Police Officer has vast powers during the investigation and can even arrest the persons who are not named in the F.I.R. As accused persons provided during the course of investigation, he is able to collect material of incriminating nature to connect such persons with commission of offence.
27. ' It is further observed that Investigating Officer without registering any F.I.R. Is quite competent under the law to continue the investigation and arrest persons against whom there was material to connect them with the offence regardless of the fact whether they were named in F.I.R. As accused persons or not. The scope is so wide that the police officer can arrest even complainant as an accused person if during the investigation he comes across material and evidence which connects complainant with commission of crime.
28. ' In case of Altaf Hussain v. Government of Sindh (ibid), it was observed by a D.B. Of this Court that whenever an adequate remedy in the form of private complaint is available to the petitioner, the relief sought by him in the petition may be declined to him. The private complaint could provide an equally adequate relief to the petitioner because he could lead the entire evidence himself before the Court and his grievance could be adequately redressed by filing the same.
29. ' The authorities relied upon by the learned counsel for the petitioner, are distinguishable from the facts and circumstances of the present case.
30. 'The upshot of the above discussion is that 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.
31. ' Looking towards the peculiar facts and circumstances of the case, I am of the considered view that the present petition merits no consideration and it stands dismissed with no order as to costs.