ORDER-SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Crl. Misc. Appln. No. S- 303 of 2022.
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Date of hearing |
Order with signature of Judge |
08.12.2022.
1. For orders on office objections.
2. For orders on M.A. No. 4817/2022 (Exemption Application).
3. For hearing of main case.
Syed Arbab Ali Shah, Advocate for applicant.
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1. Deferred for the time being.
2. Exemption allowed subject to all just exceptions.
3. Through captioned criminal miscellaneous application, applicant Kamla Bai has impugned the order dated 20.10.2022, passed by the learned Sessions Judge/ Ex-Officio/Justice of Peace, Kashmore @ Kandhkot, whereby he has dismissed an application filed by the applicant in terms of Section 22-A & 22-B Cr.P.C, seeking order for registration of F.I.R.
In her application, the applicant has stated that, on 28.9.2022 proposed accused being police officials of P.S Ghouspur apprehended her son Lal Chand alias Raja from his house; she filed application under Sec5tion 491 Cr.P.C against illegal confinement of her son, but during raid conducted by the Magistrate her son was not found. It is further case of applicant that later on applicant came to know that her son has been shifted to Ghotki, as such she filed similar application before learned Sessions Judge, Ghotki, and it came on surface that son of applicant was involved and arrested in connection with F.I.R No.358/2022 of P.S A-Section Ghotki. In this regard, the applicant went to police station concerned, but the police refused to register F.I.R, hence, she filed an application in terms of Section 22-A & 22-B Cr.P.C, which was dismissed by learned Sessions Judge/ Ex-Officio/Justice of Peace, Kamber-Shahdadkot @ Kamber vide impugned order.
The learned counsel for applicant contended that learned Justice of Peace has erred in law and exercised discretion in favor of the proposed accused. He further added that the contents of application filed by him under Section 22-A & 22-B Cr.P.C, prima-facie discloses the commission of a cognizable offence and as per provisions of Section 154 Cr.P.C the Officer Incharge of the Police station is required and bound to register F.I.R and he has no power to refuse. Lastly, he prayed that his application may be allowed and respondent No.1 may be directed to register F.I.R of the applicant.
Through impugned order the learned Sessions Judge/ Justice of Peace, declined the prayer of the applicant by observing that: -
“The respondent No.1/ SHO P.S Karampur has submitted report dated 15.10.2022, averring that son of applicant has been arrested by P.S A-Section Ghotki, where F.I.R No.358/2022 under Section 9 (c) of Control of Narcotic Substances Act, 1997, has been registered. The allegations leveled in memo of application against proposed accused are baseless. DSP Complaint Cell on behalf of SSP Kashmore @ Kandhkot has furnished report dated 14.10.2022, averring that son of applicant was not arrested by police of this district but he was arrested by police of district Ghotki. The applicant has unnecessarily dragged police official of this district in this case.
I have heard advocate for applicant, DDPP for the State and perused the record. The reports furnished by SHO P.S Karampur and DSP Complaint Cell indicate that son of applicant was arrested by police of P.S Ghotki and F.I.R No.358/2022 of P.S A-Section Ghotki under Section 9-C of CNS Act was registered against him. Thus, it is clear that son of applicant was not arrested within territorial jurisdiction of this district. For the foregoing reasons, I am of the humble view that no case for recording of statement of the applicant and incorporating the same in F.I.R has been made out, therefore, criminal miscellaneous application in hand is dismissed.”
It is admitted fact that, the applicant intends to register case against the proposed accused persons, who according to her arrested her son; illegally detained him and ultimately implicated him in a criminal case. However, the version of applicant has been negated by the concerned police with regard to happening of the alleged incident in a fashion as disclosed by the applicant in her application. The stance taken by the police concerned is that son of the applicant was not arrested by Ghouspur Police, but he was arrested by Ghotki police with recovery of narcotic contraband. In these circumstances, when concerned police has already negated and denied the version of the applicant, what would be expected from them if the F.I.R of the applicant is registered, as such proper course for the applicant would be that of adequate relief in shape of a direct complaint.
In the case of Habibullah v. Political Assistant, Dera Ghazi Khan and others (2005 SCMR 951), the Hon’ble Supreme Court has observed that filing of private complaint could provide an equal adequate relief to the petitioner because he could lead the entire evidence himself before the trial Court and his grievance could be adequately redressed considering also the fact that respondent/ SHO, who in the report and para-wise comments has mentioned adverse to the petitioner’s case, therefore, it could not be expected from the concerned SHO that he would carry independent and impartial investigation in the case. It may be stated that under the provisions of Article 199 of the Constitution of the Islamic Republic of Pakistan it was not obligatory for the High Court to issue writ in each case irrespective of the facts and circumstances which could call for exercise of judicial restraint in turning down the request for registration of F.I.R in view of the conduct of the party besides considering that adequate remedy in the form of private complaint being available to the petitioner.
In view of the above circumstances and the dictum laid down by the Hon’ble Supreme Court, I am of the view that it would be appropriate for the applicant to institute a direct complaint before the Court having jurisdiction, where she could lead entire evidence herself and her grievance could be adequately redressed. With above observations, the application in hand being merit-less is dismissed in limine.
Judge
Ansari