ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

Present:

Mr. Abdul Rasool Memon, J.

Mr. Salahuddin Panhwar, J.

C.P.No.D- 190 of 2014

Date of hearing: 18.12.2014.

Date of order: 18.12.2014.

Mr. Sarfraz Ali Metlo, Advocate for petitioners.

Mr. Allah Bachayo Soomro, Additional A.G.

Mr. Amjad Ali Sahito, Special Prosecutor for A.N.F.

SALAHUDDIN PANHWAR, J: Through instant petition, petitioners pray as under:-

“(a) quash the proceedings of the Special Case No.34/2012 pending in the Court of Special Judge (N) Jamshoro @ Kotri based upon in FIR No.02/2012 u/s 6, 9(c) CNS Act PS ANF Hyderabad and direct for initiation of proceedings against the respondent No.6 for fabricating the false cases;

alternatively,

direct for the further/re-investigation of the maliciously false and fabricated FIR No.02/2012 dated 19.09.2012 PS ANF Hyderabad by any reputed police officer and release the petitioner No.1 on bail pending re-investigation/further inquiry.

(b) restrain the respondents from harassing and humiliating the petitioners and their family members by involving them in false and fabricated cases.

(c) grant any other relief fit and proper in the circumstances of the case.”

2. Precisely, case of the petitioners is that there was an agreement of tenancy with regard to Shell Petrol Pump between the petitioners and Haji Abdullah Katiar; during such tenancy period differences arose between them; being influential person, landlord attempted to forcibly dispossess and deprive petitioner from his legal trade; consequently petitioners filed Civil Suit and FIR bearing Crime No.226/2012 at P.S. Steal Town; petitioners also filed Constitution Petition No.3418/2012 whereby mandatory injunction was issued; on account of this dispute, petitioner No.1 has been booked in false cases and narcotics cases.

3. It further reveals that petitioners filed Constitution Petition with regard to quashment but such petition was dismissed with following order:-

“Through instant petition, the petitioner has prayed for an order directing the respondent ANF Hyderabad to release his brother Muhammad Yousif Kharal, who according to the petitioner has been falsely implicated in Crime No.02/2012 for the offence under Section 9(c) of the Control of Narcotic Substances Act.

Since recovery of 300 kilograms of charas was shown from the brother of petitioner, therefore, we have asked counsel to argue maintainability of the instant petition and on 18.10.2012 counsel after arguing the matter at length sought adjournment to place documentary evidence to prove that the petitioner’s brother is innocent and consequently we adjourned the hearing for today at 11 a.m. with the observation that if the petitioner fails to bring documentary evidence to establish innocence of petitioner’s brother cost not less than Rs.25,000/- will be imposed.

Today counsel contends that on the day of incident, Investigating Officer of the case was available in Karachi and this fact can be proved from the record of Cell Phone Company and, therefore, Cell Phone Company be directed to place on Court’s file the record of cell phone of the Investigating Officer. On our query, as to how, while exercising Constitutional jurisdiction this Court can appreciate the matter pertaining to recording of evidence and chock the prosecution, counsel has no answer except for pleading that the cost of Rs.25,000/- may not be imposed and even went to an extent of not pressing this petition. However, tendency of filing frivolous petitions is sharply increasing and to curb such tendency the dismissal of such petition with cost appears to be the only solution.

In the circumstances, we dismiss the instant petition however instead of imposing cost of Rs.25,000/- impose cost to the extent of Rs.5,000/-. The cost so directed be deposited with the Nazir of this Court within seven days hereof.”

4. Learned counsel for petitioners inter alia contends that first petition was with regard to quashment of FIR but here the petitioners seek re-investigation of the case on the plea that cell record of I.O shows that he was not available within territorial jurisdiction of Hyderabad and such case is based on malafide and ulterior motive; petitioner No.1 was carrying his lawful business hence allegation of carrying 300 kilogram charas is apparently absorbed and in-logical therefore, this is a fit case wherein this Honourable Court can rescue the petitioners by directing re-enquiry. In support of his contentions, he has relied upon PLD 2005 Supreme Court 511, PLD 1983 Supreme Court 344, PLD 2005 Karachi 164, 2006 CLC 694, 1993 CLC 2478 and 2004 YLR 2200.

5. Conversely, learned counsel for A.N.F. as well learned A.A.G. contend that petitioners have not approached the concerned authority for re-investigation and this Court is not competent to issue direction for re-investigation as it is purely domain of investigation agency; instant case is pending since 02 years for trial; if petitioners possess any evidence they would be at liberty to substantiate through pleas; instant petition is devoid of merits.

6. After careful consideration of arguments advanced by learned counsel for respective parties and perusal of record, it appears that through main prayer (prayer clause (a) the petitioner (s) have repeated an attempt to seek quashment of F.I.R though such was failed. I must mention here that ‘alternative’ prayer should always be within four corners of main relief because the relief always sought with reference to pleading (narration of facts). The alternative prayer / relief, in instant matter, does not appear to be within four corners of main prayer / relief. The earlier petition for quashment i.e main prayer already met its fate of dismissal with costs. However, since the petitioners have stuck with alternative prayer only therefore, it would be proper to attend the legality thereof within parameters of the Constitutional Jurisdiction of Article 199.

7. The petitioner No.1 is booked in a case of 300 K.Gs of narcotics substance (Charas). Petitioner is insisting for re-investigation of the case on the basis of cell data record of Investigation Officer of FIR in question that on the day of offence I.O. was not present at the place of incident. On this count alone the FIR, involving 300 K.Gs narcotics cannot be quashed because absence of witness (I.O) would matter and not his phone. Further petitioner No.1 claims that he was earning millions of rupees in a month having established business, therefore, how he can be carrier of such narcotics substance. It would suffice for such plea that it is not the colour, caste or status even which could be used / insisted as a license to avoid investigation into a criminal charge. If such plea is stamped it would amount to give a license to all millinioners to use their status as an exit-gate which, the law, under any circumstances, cannot approve. The ground regarding silence of instant case regarding ownership of the narcotics and destination where it was to be delivered, it should be sufficient that possession of narcotics, if proved, would be sufficient to prove the charge. The ground of story, being believable or otherwise, is also not a sufficient ground to claim reinvestigation which cannot be insisted unless prima facie it is established that investigation officer is motivated and conducted investigation which is result of colourful exercise, mala-fide and excess of jurisdiction. The petitioner has claimed that there are multiple litigations between landlord and tenant, thus he has been falsely involved by police at the behest of Katiar who is trying to dispossess the petitioner from his Petrol Pump. All the grounds, taken by the petitioners, are of such a nature that the same would fall within meaning of ‘defence’ hence the accused persons (petitioner No.1) shall have fair opportunity to agitate such grounds including production of relevant cell-phone data, if any.

8. There can be no denial to well established legal proposition that investigation is the domain of the investigation agency and the investigation agency cannot be legally directed to investigate on a particular line particularly one sketched by the accused. It is also a matter of record that the petitioner (s) have, at no material times, moved proper forum / authority i.e superior of I.O with such complaint of illegality or malafide on part of the Investigating Officer nor any such request has been made and even to the proper court which, under the law, is supervisory authority of investigation.

9. Worth to add here, it is matter of record that petitioners had filed petition before this Court on similar issue that was dismissed with cost hence on same issue this Court cannot sit over the order already passed by this Court when admittedly such order was not assailed before the apex Court. Even otherwise, the petitioners have failed in establishing any exceptional circumstances where direction for re-investigation could be ordered under constitutional jurisdiction more particularly when normally this is not within scope of Article 199 of Constitution of Pakistan, 1973 which, can come into play, for help of justice but not to shoulder wishes of one for getting a legal thing at his sketched lines.

10. Under these circumstances, on the plea of colourful exercise by Investigation Agency, petitioner would be with ample opportunity to agitate his pleas before the competent trial Court having jurisdiction and he may substantiate his pleas through latent and patent evidence; trial Court would be competent to decide the matter after being heard both versions in juxta position while scanning the evidence minutely.

11. In view of above, instant petition is not maintainable hence same was dismissed by short order dated. 18.12.2014 and these are the reasons whereof.

JUDGE

Tufail