IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA
Cr. Misc. Appln. 466 of 2021 Mst. Fozia Magsi,
vs. S.H.O P.S. Qubo Saeed Khan & Others
For the Applicant : Mr. Sanaullah Gilal, Advocate
Date of hearing : 20.01.2022
Date of announcement : 20.01.2022
ORDER
Agha Faisal, J. (1) Urgency granted. (2) Deferred (3) Granted subject to all just exceptions (4) Applicant has impugned the order dated 08.12.2021, rendered by the learned Additional Sessions Judge-I, Shahdadkot in Cr. Misc. Application No. 2135/2021, whereby the applicant's plea was dismissed. It is considered illustrative to reproduce relevant content hereinabove.
"5.Heard the learned advocate for the applicant/petitioner, perused the police reports and the material available on record. It appears from the reports of police that neither applicant was harassed nor pressurized while the brother of applicant is required to police in case crime No74/2021 under section 324, 353, 402, 399, 148, 149 PPC of P.S Miro Khan. It also appears from the further perusal of record during course of investigation of aforesaid case ASI Sved Hussain Ali Shah arrested accused Sabir Admanı Magsi and recovered an unlicensed pistol along with bullets from him and such separate case bearing FIR No.75/2021 under section 24 SAA.2013 of P.S Qubo Saeed Khan had been registered against him. It is pertinent to mention here, if the applicant had been harassed or pressurized then why did she not approach to DSP Public Complaint Redressal Cell, Kamber-Shahdadkot for redressal of her grievances.
6. The settled position of law is that Court in mechanical manner should not allow application filed under section 22-A Cr.P.C and should apply its mind as to whether applicant/petitioner has approached to the Court with clean hands or is tainted with malice. Before switchover to the merits of instant application I feel it my duty to bring on record the recent development of the law on the point at issue. In case of Mian Abdul Waheed (2011 P.Cr.L.J. 438) the dictum has been laid down that jurisdiction Under Sections 22-A & 22-B Cr.P.C. could not be exercised mechanically by the Ex-Officio Justice of Peace while directing registration of FlRs, each and every case is to be looked on its peculiar facts and circumstances. It is now settled law that Ex-Officio/Justice of Peace is not bound to issue in all cases a direction to concerned SHO for the registration of FIR. The Section 22-A C.P.C. is an enabling and beneficiary piece of legislation and therefore, the duty is also casts upon the courts to save it to be misused and abused and to be used in only genuine cases. Reliance placed on case law reported in PLD 2010 SC 691.
7. In light of material available, it appears that there is no prima facie case is made out in the instant petition. It appears that no cogent evidence/requisite documentary proof within four corners of law has been annexed with the instant petition. In view of the foregoing discussion, I am of considered opinion that this is not a fit case to order registration of a criminal case, therefore, the petition stands dismissed."
2. Learned counsel submits that the record was not properly appreciated by the learned Court and the order was passed in a perfunctory manner.
3. Heard and perused. Learned counsel for the applicant has impugned the aforesaid findings, however, has remained unable to point out any infirmity or deficiency therein meriting interference of this Court.
4. This court has considered the impugned order and is of considered opinion that the finding arrived at are well reasoned and borne from the record there before, to which no cavil has been articulated by the applicant's counsel. The order prima facie demonstrates appreciation of the record / evidence and also shows that ample opportunity was provided to the concerned to state their case. Learned counsel has remained unable to identify any manifest infirmity in the impugned order, meriting interference.
5. It is trite law[1] that where the fora of subordinate jurisdiction had exercised its discretion in one way and that discretion had been judicially exercised on sound principles the supervisory forum would not interfere with that discretion, unless same was contrary to law or usage having the force of law.
6. In view of herein above, this application is determined to be devoid of merit and is hereby dismissed in limine.
JUDGE
[1] Per Faqir Muhammad Khokhar J. in Naheed Nusrat Hashmi vs. Secretary Education (Elementary) Punjab reported as PLD 2006 Supreme Court 1124; Naseer Ahmed Siddiqui vs. Aftab Alam reported as PLD 2013 Supreme Court 323.