W.P.No.4823-10
1
W.P. No.4823/2010
03.06.2010
Mr. M. M. Iqbal, Advocate, for the petitioner.
Mr. Muhammad Arif Gondal, Advocate, for respondent
No.3.
Syed Nayyar Abbas Rizvi, Asst. A.G. with Bashir
Ahmad, S.I.
This petition filed under Article 199 of the
Constitution of Islamic Republic of Pakistan, 1973 is
directed against order dated 25.2.2010 passed by Addl.
Sessions Judge/Justice of Peace, Mandi Bahauddin.
Briefly stated the facts of this case are that the
petitioner filed a petition under Section 22-A Cr.P.C.
alleging therein that her friend Mst. Bushra Parveen was
subjected to zina-bil-jabr by respondents No.3 to 5. That
a cognizable offence has been made out for registration
of a criminal case against respondents No.3 to 5.
Learned Addl. Sessions Judge/Ex-officio Justice of
Peace called for comments from the concerned SHO who
reported that the petitioner is a lady of ill-repute and the
story as put forward in the petition under Section 22-A
Cr.P.C. has been concocted. Learned Addl. Sessions
Judge/Ex-officio Justice of Peace, Mandi Bahauddin in
the impugned order dated 25.2.2010 dismissed the
petition while relying on report which was submitted by
the concerned SHO.
Learned counsel submits that a bare perusal of
petition filed by the petitioner under Section 22-A
Cr.P.C. reveals that a cognizable offence had been
committed by respondents No.3 to 5 and miscarriage of
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justice has been occasioned by respondent No.1 in not
issuing a direction for registration of a criminal case
against respondents No.3 to 5. That the concerned SHO
was duty bound to record the statement of the
complainant and subsequently register an FIR against the
accused as provided in Section 154 Cr.P.C. That blood
samples, vaginal swabs and clothes worn by the victim
are still lying in the hospital, since an FIR has not been
registered against the accused. That any inquiry held by
the concerned SHO prior to registration of FIR has no
value in the eyes of law. Lastly it is submitted that filing
of a private complaint is not a efficacious remedy. In
support of his contentions learned counsel relies on
“Allah Ditta Vs. Additional Sessions Judge, Khushab
and 12 others” (2008 P. Cr. L.J 908), “Mst. Malka
Jan Vs. Inspector General of Police, N.W.F.P.
Peshawar and 2 others”
(2000 P. Cr. L.J 320),
“Maulvi Shahzado Dreho Vs. Khalid Mahmood
Soomro and others” (2003 P.Cr.L.J. 319) and “Saeed
Ahmad and others Vs. Naseer Ahmad and others”
(P.L.D 2000 Lahore 208).
Learned law officer and learned counsel for
respondent No.3 submits that no exception can be taken
to impugned order dated 25.02.2010 passed by
respondent No.1. That petitioner has alternate remedy of
filing private complaint and since this has not been done
and this petition is liable to be dismissed.
It is trite that disputed questions of facts cannot be
gone into by this court while exercising its extra ordinary
constitutional jurisdiction under Article 199 of the
Constitution of Islamic Republic of Pakistan 1973. A
bare perusal of the record reveals that there is a factual
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controversy which cannot be resolved by this court as has
been
held
by
the
Apex
Court
in
Col.Shah
Sadiq.VS.Muhammad Ashiq & others 2006 SCMR
276. The petitioner has alternate remedy for filing of a
private complaint before a court of competent jurisdiction
as has been held by the August Supreme Court of
Pakistan in judgment dated 09.09.2009 passed in Civil
Petition
No.1398-L/2009
titled
Rai
Ashraf
etc.VS.Muhammad Saleem Bhatti etc.
The arguments advanced by the petitioner that
filing of a private complaint would not be an efficacious
remedy is wholly without any substance. This aspect of
the case was examined by a Full Bench of this court in
Khizar Hayat & others.VS.Inspector General of
Police (Punjab) Lahore & others PLD 2005 Lahore
470 wherein it was held that a person who files a private
complaint is not at any disadvantage. It was held that
“the impression entertained by a large section of the legal
community in our country that in case of filing of a
private complaint the accused person cannot be arrested
and recovery cannot be effected from him is nothing but
erroneous and fallacious”. As such it can safely be said
that filing of a private complaint before a court of
competent jurisdiction is an efficacious remedy and since
the petitioner has not availed of it the instant petition
under Article 199 of the Constitution of Islamic Republic
of Pakistan 1973 is not competent.
The upshot of the above discussion is that this
petition has no merit and it is dismissed.
(Approved for reporting)
Afzaal.
(Muhammad Yawar Ali)
Judge.
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