ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

C.P. No.D-339 of 2012

ORDER WITH THE SIGNATURE OF THE JUDGE

1)       For Katcha Peshi.

2)       For hearing of CMA No.1894/2012 (Stay)

          ----------------------

02.05.2013

Mr. Syed Shafqat Ali Shah Masoomi, Advocate for Petitioner.

Mr. Syed Mohsin Imam, D.A.G. along with Syed Israr Ali, Additional Director, FIA.

Mr. Asif Ali Abdul Razzak Soomro, Advocate for Respondents No.4 to 6, 8, 10 & 11.

Mr. Sher Muhammad Shaikh, Addl: Advocate General Sindh

Mr. Zafar Ahmad Khan, Addl: Prosecutor General Sindh

          ------------------------------------------------

 

NAIMATULLAH PHULPOTO, J.--- Through this constitution petition, filed on 02.02.2012, petitioner seeks following reliefs:

(a)              To direct the respondent No.6 from provincial police officer (IGP) to provide the foolproof security to the petitioner and his family members, wife/children, as the petitioner and his family members are in danger at the hands of proposed accused who are highly influential.

 

(b)             To direct the respondent No.2 to register the F.I.R. against the proposed accused and investigate the matter according to law.

 

(c)              Ad interim injunction may be granted to the effect that respondent No.2 may be restrained not to arrest the petitioner on the basis of illegally and unlawfully, forcibly signatures obtained on the documents viz. proposals, agreements, 57 cheques of the HBL account, SITE Branch Hyderabad, the signatures obtained on those documents forcibly, threat to life, due to torture during the imprisonment of the petitioner on in central prison Karachi on 17th August 2010 and during imprisonment signatures were obtained on proposal, agreements, 57 postdated cheques, and pay orders of 23,66,000/- under pressure on 26th August 2010 and petitioner was informed if he will not signed the agreement he shall not be released on bail. Respondent No.2 may be further directed that in case FIA authorities want to arrest the petitioner prior permission may be obtained from this Honourable Court.

 

(d)             Any other relief which this Honourable Court deem fit and proper in the circumstances of the case.

 

(e)              Cost of the petition may be awarded.

 

Notice was issued to the respondents as well as Advocate General Sindh and Prosecutor General Sindh. Parawise comments have been filed by respondents Nos.4 to 6, 8, 10 and 11, in which it is stated that prior to this C.P. No.D-3133/2010 was filed for quashment of F.I.R. and it was disposed of vide order dated 17.08.2011. It is further stated that Petitioner has exhausted all the remedies available to him under the law upto Honourable Supreme Court of Pakistan. It is also stated that bail has been refused to the petitioner by the trial Court so also by the High Court and presently the petitioner is absconder. It is prayed that constitution petition may be dismissed.

 

Mr. Shafqat Ali Shah Masoomi, learned Advocate for petitioner argued that respondent No.2 may be directed to register the F.I.R. against the proposed accused. He has further submitted that respondent No.2 may be restrained not to arrest the petitioner. According to learned Advocate for the petitioner signatures of the petitioner have been obtained by force on 57 cheques of HBL Site Branch Hyderabad.  

 

Mr. Mohsin Imam, learned D.A.G., assisted by Mr. Asif Ali Soomro, Advocates for respondents Nos.4 to 6, 8, 10 and 11 argued that petitioner is fugitive from the law, concession of bail has been refused to him by the trial Court so also by the High Court, alternate remedy is available to the petitioner to approach the concerned Sessions Judge/Ex-Officio Justice of Peace, petition is not maintainable.

 

We have carefully heard the learned counsel for the parties and perused the relevant record.

 

An Ex-Officio Justice of Peace may issue appropriate directions to the police authorities concerned on a complaint regarding non-registration of a criminal case, such alternate and adequate remedy is available to the petitioner, without exhausting that remedy, the petitioner has filed the instant constitution petition. No compelling circumstances have been pointed out by the petitioner to approach this Court directly by invoking the constitutional jurisdiction. The powers conferred on Sessions Judges as Justice of Peace by virtue of their offices are vast. Under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 merely directions could be issued if at all a case is made out.  Since jurisdiction under section 22-A and 22-B Cr.PC vests both in High Court and Court of Sessions as a rule of propriety. Where concurrent jurisdiction vests in two Courts than a Court subordinate to be approached in the first instance where remedy of approaching Justice of Peace under Section 22-A and 22-B Cr.PC is available and the same being more efficacious and more speedy remedy. Therefore, petitioner may avail such alternate remedy instead of approaching this Court by invoking constitutional jurisdiction. There is no legal force in the contention of learned counsel for the petitioner that police may be ordered not to arrest the petitioner in the F.I.R. This court cannot interfere in the investigation. Police officer should be given freehand to investigate the case with his own wisdom unless mala fide is shown. It is also pointed out by the learned counsel for the respondents that petitioner is fugitive from the law and he has been refused bail by the trial Court and presently he is absconding. It is also well established law that a fugitive from the law and Courts loses some of the normal rights guaranteed by the procedure so also substantive law. Despite directions of the Court petitioner has also chosen to remain absent before this Court today, it shows that petitioner has not approached this Court with clean hands. Therefore, constitution petition is without merits and the same is dismissed, accordingly.

 

                                                                             JUDGE

 

                          JUDGE 

 

Gulsher/PA