ORDER SHEET
IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD.
Cr. Misc. Appln. No. D-168 of 2011.
DATE ORDER WITH SIGNATURE OF JUDGE
For hearing of MA 5690/2012 Mr. Justice Nadeem Akhtar
Mr. Justice Shahnawaz Tariq
11.02.2014
Applicant Anwar Ali in person.
Mr. Amjad Ali Sahto Advocate for the alleged contemnor.
Mr. Shahid Ahmed Shaikh Assistant P.G. for the state
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ORDER
SHAHNAWAZ TARIQ-J:- Applicant Anwar Ali had filed instant application under Article 204 of Constitution of Islamic Republic of Pakistan, 1973 r / w section 2(A), 3,4, 5, 6 and 17 of Contempt of Court Ordinance 2004, against the alleged contemnor namely Ghulam Awais Mangrio, SHO P.S Bandhi, District Shaheed Benazirabad with prayer to initiate contempt proceedings against him, as he has allegedly disobeyed the order of this Court dated: 29.08.2012 willfully, deliberately, intentionally and knowingly.
2. Brief facts leading to this application are that the applicant filed Cr. Misc. Application u/s 561-A, Cr.P.C agitating the order dated: 03.03.2011 passed by learned Ist Additional Sessions Judge, Shaheed Benazirabad, whereby application under section 22-A, Cr.P.C filed by the applicant seeking directions to the respondent No.8 (SHO) to register FIR against the proposed accused mentioned therein, was dismissed.
3. After hearing the parties as well as learned APG, this Court had disposed of instant criminal miscellaneous application vide order dated: 29.08.2012, whereby the contemnor SHO was given certain directions. The operative part of the said order is reproduced as under:-
“Prima-facie, it appears that on the same subject matter, the Applicant has initiated civil litigation and his civil suit was decreed. Thus, at least in one round of litigation the Applicant had achieved success. In the circumstances, we fail to see why his application for direction for registration of FIR was turned down by the learned Sessions Judge. We appreciate the standard of proof in civil and criminal proceedings in different but at the very least on a balance of probability, the petitioner did achieve some success.
In view of this position, impugned order is set aside. Let the Applicant appear before the SHO P.S. Bandhi who shall hear the Applicant and on the facts as stated by him if cognizable case is made out then register F.I.R, but in case the SHO is of the view that no cognizable case is made out, he must record his reasons in writing for coming to such conclusion, and provide the same to the Applicant, who may then seek such remedy as is available in law. We may note that this order is not the direction to the SHO to register the F.I.R. He must apply his mind independently to the facts as stated by the Applicant but he is put on notice that should we find that for some ulterior motives or purposes beyond scope of law he has refused or failed to register the F.I.R when cognizable offence is made out he shall be liable for action in accordance with law.”
4. From perusal of record it has further revealed that after passing of the above order, the respondent No.1 filed an application u/s 561-A Cr.P.C for review / recall of the order dated 29.08.2012 and this court after hearing the parties, had modified the earlier order dated: 29.08.2012 vide order dated: 11.09.2012, which reads as under:-
“We have heard the leaned counsel for the applicant / respondent No.1 in these applications, as also Mr. Anwar Ali the applicant in the main application and after having heard the learned counsel for the applicant and with the consent of learned D.P.G, we modify the order dated 29.08.2012 only to the extent that before taking any action in terms stated therein, the SHO P.S. Bandhi shall also gave an opportunity of hearing to the respondent No.1 and allow him to place before the SHO such materials / orders with regard to previous rounds of litigation, as according to the respondent No.1, have bearing on whether the FIR should be registered. We may note that this modification is in the peculiar facts of the particular case and is limited thereto. Applications stand disposed of in the above terms.”
5. The alleged contemnor SHO filed reply to the contempt application wherein he has denied the allegations of defiance of the orders of this court and stated that pursuant to order dated: 29.08.2012, he recorded statement of the applicant on 05.09.2012. He has collected material record in respect of different complaints made by the applicant before different Courts, and almost all the complaints were disposed of due to his poor, fake and baseless allegations. He further stated in his reply that in compliance of subsequent order dated: 11.09.2012, he called both the parties and after hearing them, it has revealed that the applicant was involved in crime No. 9 of 1999, under section 365-A P.P.C of P.S Bandhi by the private respondents namely Javid Arain and Nazeer Arain, but applicant was acquitted by the learned Court by extending benefit of doubt. It is further stated that no cognizable offence was made out from the facts disclosed by the applicant.
6. The applicant present in person, has contended that the alleged contemnor has failed to comply with the order of this court dated: 29.08.2012, whereby he was directed to record statement of the applicant and if a cognizable offence is made out, register the FIR. He further submitted that he had provided his statement in writing to the alleged contemnor but he did not consider the same and declined to register the FIR for the sole reason that the proposed accused in the proposed FIR are the police officials, therefore, the alleged contemnor has willfully disregarded the order of this Court, and the alleged contemnor is liable for contempt proceedings.
7. The alleged contemnor present in court has contended that he has complied with the order of this court. He submitted that order dated: 29.08.2012 was modified by this court to the extent that before taking any action in terms of earlier order, an opportunity of hearing was to be provided to the respondent No.1 and he allowed him to place such materials / orders with regard to the previous rounds of litigation. He contended that after hearing both the parties and considering the facts, he determined that no cognizable offence was made out, therefore, FIR could not be registered.
8. Learned counsel for respondent No.1 as well as learned Asstt. P.G also opposed this application and contended that the alleged contemnor was not specifically directed to register the FIR of the applicant, but he was directed to hear both the parties and apply his mind independently and if cognizable offence is made out, register the FIR and according to alleged contemnor no cognizable offence was made out as such contempt application is liable to be dismissed.
9. We have heard the parties and perused the material available on record particularly orders referred supra passed by this Court.
10. From perusal of available record it appears that vide order dated 29.08.2012, the alleged contemnor was directed to hear the applicant and if cognizable case is made out then register FIR and if he is of the view that no cognizable case is made out, he must record his reasons in writing for such conclusion and provide the same to the applicant. Such order was subsequently modified by this Court vide order dated 11.09.2012 on the application of the respondent No.1 to the extent that before taking such action in terms of the earlier order, respondent No.1 may also be heard and allowed to produce the material / orders regarding previous litigation. From the aforementioned orders, it has transpired that it was left upon the SHO to make his independent view whether from the facts stated by the applicant as well as respondent No.1, a cognizable offence is made out and if so, he should register the FIR. The alleged contemnor has submitted that from the examination of the facts and circumstances and after hearing the parties, he came to the conclusion that no cognizable offence was made out, therefore, he did not register the FIR.
11. Admittedly, there is an old dispute between the parties and cases were also registered and orders were also passed by the concerned courts. The contention of the applicant that the alleged contemnor has deliberately not considered the statement of the applicant because the proposed accused are belonging to the police department, in the meticulous circumstances, if any FIR is lodged by the alleged contemnor, the logical outcome of investigation would be the same and applicant will not get the justice due to the partial attitude of the police.
12. Consequently, we are of the view that from the facts and circumstances discussed supra, admittedly there were directions of this Court to the contemnor SHO to record the statement of the applicant as well as hear the respondent No.1 and examine the material / orders with regard to the previous litigation and if a cognizable offence is made out, to register the FIR, but there was no specific direction to the contemnor for registration of FIR, and it was left upon the alleged contemnor to apply his mind independently and conclude the matter. The applicant may be dissatisfied with the conclusion drawn by the SHO by not lodging FIR, but the record indicates that the directions of this Court as well as the prescribed procedure were duly complied with by the S.H.O. It is well- established that the law of contempt must be construed and applied strictly. A party alleging contempt of Court’s order is duty-bound to establish without any iota of doubt that contempt has been committed. In the present case, we have not been able to find any such act or omission on the point of the S.H.O that may lead to a conclusion that he has disobeyed or disregarded the orders of this Court.
13. For the foregoing reasons and circumstances, the alleged contemnor does not appear to have committed any disobedience or defiance of orders of this Court. Accordingly, instant application is devoid of merits stands dismissed. However, the applicant may seek equally efficacious, effective alternate remedy by filing direct complaint against the proposed accused/respondents as envisaged under the law before the competent court.
JUDGE
JU DGE