ORDER SHEET
IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD.
Cr.Rev.Appl.No.S- 04 of 2014
DATE ORDER WITH SIGNATURE OF JUDGE
11.04.2014.
Mr. Fayyaz Hussain Sabki, Advocate for applicant.
Mr. Altaf Hussain Khokhar, Advocate for respondent No.2.
Mr. Imamuddin Otho, Advocate for respondent No.3.
Mr. Shahid Shaikh, A.P.G. for the State.
Respondents No.2 and 3 present in person.
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MUHAMMAD JUNAID GHAFFAR, J:- Through instant Criminal Revision Application, the applicant has impugned the order dated 08.01.2014 passed by learned Ist Additional Sessions Judge, Hyderabad “(Judge)”, whereby the application filed under section 22-A & B (6) Cr.P.C. filed on behalf of the applicant was dismissed.
2. Learned Counsel for the applicant contended that the learned Judge has committed gross illegality and irregularity while passing the impugned order and has failed to exercise the powers vested in him as Justice of Peace. Learned Counsel further contended that the learned Judge was not empowered to call upon the proposed accused persons and inquire into the matter as the scope of application under section 22-A & B Cr.P.C. is of limited one and he is only authorized to call report from the concerned Police Station regarding the commission and / or not of a cognizable offence. Learned Counsel also contended that the learned Judge has failed to appreciate that applicant had submitted affidavits of three independent witnesses regarding truthfulness of the contents of the application and the incident which happened on 15.12.2013. Learned Counsel further contended that the learned Judge has failed to record the name of the said witness, who according to the learned Judge had not supported the case of the applicant and therefore, the impugned order was illegal and was passed without proper reasoning and in utter disregard of the settled law on the issue. Learned Counsel submitted that the applicant had stated that respondents No.2 and 3 on 15.12.2013 had barged into the house of the applicant at midnight (12.00 AM presumably) and after causing harassment and so also rude behavior with the family members of the applicant, took his brothers namely Kashif Riaz and Jahanzaib Mughal into custody and also took away gold ornaments of 06 Tolas and cash of Rs.50,000/- and were also issuing threats that they have taken revenge for filing of Criminal Miscellaneous Application No.1384/2013 against the respondents No.2 and 3. Learned Counsel further contended that the learned Judge has failed to appreciate the material evidence on record and instead of directing the registration of FIR against the respondents No.2 and 3, has dismissed the application under section 22-A & B Cr.P.C. In support of his contentions, learned counsel relied upon the cases reported as Akhtar Hussain v. Abdul Waheed and 2 others (2010 YLR 558) and Abdul Rahim v. S.H.O. Police Station Adilpur, District Ghotki and 2 others (2013 YLR 581).
3. Learned A.P.G. contended that on perusal of the record, it appears that the applicant has not come before this Court with clean hands which is a sine qua-non for making an application under section 22-A & B Cr.P.C. He further contended that in fact the respondent No.3 is the brother-in-law of the applicant and no such disclosure was made by the applicant in his application under section 22-A & B Cr.P.C. and so also in the present revision application. Learned A.P.G. further contended that the applicant has also not disclosed that he had also filed a C.P. bearing No.S-25/2014 which was filed on 11.01.2014 whereas the present Criminal Revision Application was filed on 10.01.2014 and the applicant had sought more a less similar relief in the said petition but has failed to disclose the fact that an application under section 22-A & B Cr.P.C. was filed before the learned Judge who had dismissed the same on 08.01.2014 and further that present Criminal Revision Application was also filed by the applicant. Learned A.P.G. contended that such non-disclosure of material facts before this Court disentitles the applicant to seek any indulgence from this Court as the applicant has not come before this Court with clean hands. Learned A.P.G. further contended that it appears from the facts of the case that the applicant is trying to create some pressure on the respondents No.2 and 3 to save his own skin and his brothers who are nominated in not less than seven FIRs registered at various Police Stations in Karachi and Hyderabad. In support of his contentions, learned A.P.G. relied upon the case reported as Ghulam Rasul v. Additional Sessions Judge, Gujranwala and 4 others (2013 P.Cr.L.J 999).
4. Counsel appearing for respondents No.2 and 3 have adopted the arguments of learned A.P.G. and submitted that present applicant is trying to pressurize the respondents No.2 and 3 by filing various applications under section 22-A & B Cr.P.C. as well as petition before this Court and further tried to influence the investigation / proceedings being conducted against his brothers in different FIRs.
5. I have heard all the learned Counsel and learned A.P.G. and have perused the record with their assistance.
6. It appears from the perusal of the record as submitted on behalf of respondent No.2 that applicant neither made proper disclosure of the facts before the learned Judge and nor before this Court while filing the instant revision application as well as the Constitution Petition No.S-25/2014. In fact, initially the applicant had filed an application under section 22-A & B Cr.P.C. before the Court of Ist Additional Sessions Judge, Hyderabad bearing Criminal Miscellaneous Application No.1384/2013 which was disposed of by the learned Judge on 28.08.2013. In the said application, more or less the same allegation was attributed against the respondent No.2 (respondent No.1 in Criminal Miscellaneous Application No.1384/2013) that on 25.08.2013 at about 5-00 p.m. respondent No.2 had come to the house of the applicant and had threatened his family members as the applicant was not present at the time of incident. Such application of the applicant was disposed of by learned Judge by directing the official respondents to provide legal protection to the applicant. Subsequently, the applicant had filed another application under section 22-A & B Cr.P.C. which was numbered as Criminal Miscellaneous Application No.2188/2013 and was dismissed by the impugned order dated 08.01.2014.
7. From the perusal of the impugned order, it appears that applicant had filed affidavits of three witnesses before the learned Judge and one of the witnesses appeared before the Court (though name has not been mentioned of the said witness) who on inquiry stated that the contents of affidavit were not read over to him by the advocate and his signatures were obtained forcibly on the affidavits. The learned Judge has also observed that in fact there is a dispute between the applicant and respondent No.3 over some matrimonial affairs therefore, false implication of the proposed accused cannot be ruled out. From the perusal of affidavits filed by the witnesses of the present applicant, it appears that all these affidavits are verbatim, same in all respects and further in Para 2 of the affidavits, it has been stated by the witnesses that purported incident took place on 15.12.2013 at 3-00 a.m. whereas in the present revision application, the applicant has stated that incident took place on 15.12.2013 at midnight time i.e. 2400 hours (12.00 AM). The same time and place of the incident was also stated by the applicant in his application u/s 22-A & B Cr.P.C. The time reported by the purported eye witnesses of the applicant does not even corroborate with each other and leads to a presumption that may be the incident did not either happen or the witnesses were not present at the relevant time. It is further noticed that the applicant has tried to invoke the Constitutional jurisdiction of this Court as well the as the remedy under section 22-A & B Cr.P.C. simultaneously and that too without disclosing the same before this Court. It must be appreciated that a person who seeks equity and justice from this Court has to firstly disclose all the relevant facts and the ground realities before this Court and secondly the conduct of the person seeking justice from this Court either under Constitutional jurisdiction or under the revisional jurisdiction has to be looked into as the applicant must come before this Court with clean hands and without suppressing the material facts from this Court, irrespective of the fact that whether such facts are in favour of the said person or against. From the perusal of the entire record, it appears that the case in hand is contrary to such observation, as the applicant has not come with clean hands before this Court and it further appears that only purpose of the applicant by filing application under section 22-A & B Cr.P.C. and Constitution Petition before this Court is to impress upon or to influence the proceedings / cases against his brothers pending in different FIRs at Karachi and Hyderabad.
8. In view of such position, I am of the view that the learned Judge has rightly dismissed the application under section 22-A & B Cr.P.C. and therefore, I do not find any merits in the instant Criminal Revision Application which was accordingly dismissed by means of a short order dated 11.04.2014 and above are the reasons in support of such dismissal.
JUDGE
Tufail