Mst. NUSRAT BEGUM vs SHABBIR AHMED and 4 otherss
This petition for leave to appeal challenged a High Court judgment dismissing a writ petition filed by the complainant, Mst. Nusrat Begum, regarding the acquittal of respondents in a murder case. The core legal question was whether a writ petition is maintainable when an alternative statutory remedy, such as an appeal or revision, exists against the trial court's order. The Supreme Court of Azad Jammu and Kashmir held that the writ petition was not competent because the petitioner failed to exhaust the available alternative legal remedies against the trial court's acquittal order. The Court emphasized that the High Court's extraordinary writ jurisdiction cannot be invoked when other adequate remedies are available, particularly in criminal proceedings. The principle laid down is that the High Court will not exercise its writ jurisdiction under the Azad Jammu Kashmir Interim Constitution Act when the petitioner has bypassed an effective statutory remedy, such as filing an appeal or a private complaint, to challenge an order of a subordinate criminal court.
- Is a writ petition maintainable in criminal cases when an alternative statutory remedy is available?
- Can the High Court exercise writ jurisdiction under the Azad Jammu Kashmir Interim Constitution Act when the petitioner has failed to avail of an appeal or revision?
- Does the existence of an alternative remedy bar the invocation of writ jurisdiction?
- Section 169, Code of Criminal Procedure 1898
- Section 44, Azad Jammu Kashmir Interim Constitution Act 1974
ORDER
' KHAWAJA SHAHAD AHMED, J.--- This petition for leave to appeal calls in question the judgment of the High Court dated 7-6-2005 whereby the writ petition filed by Mst. Nusrat Begum, petitioner herein has been dismissed.
2. The facts of the case are that respondents Nos.1 to 4 herein were charged for murder of Muhammad Asghar. Respondent No,1 Shabbir Ahmed was charged as principal accused who, according to the record, appears to have absconded. The police investigated the case on the F.I.R.
Of the complainant-petitioner Mst. Nusrat Begum and filed a challan in the Court, a copy of which is attached at page 16 of the paper book. Strangely enough, the Investigating Agency has extended the benefit of section 169, Cr.P.C. To the principal accused Shabbir Ahmed and Yasir Razzaq respondents. When the case was filed in the Court the legal heirs of Muhammad Asghar deceased partly compromised the case and got their statements recorded in the Court that they have no objection if respondents Irfan Arif and Muhammad Ashraf are acquitted. The trial Court on 2-8- 2004 acquitted the accused including respondents Nos.1 and 2 herein. These two respondents were acquitted on the ground that they had already been extended the benefit under section 169, Cr.P.C.
No appeal or revision appears to have been filed against the order of the District Court of Criminal Jurisdiction, Bhimber dated 2-8-2004 in spite of the fact that remedy was available to the complainant-petitioner. I Through Writ Petition No,80 of 2004 the present petitioner filed a writ petition in the High Court which was dismissed by a learned Judge mainly on the ground that the order passed by the District Court of Criminal Jurisdiction, Bhimber was appealable, therefore, the writ is not competent. This order of the High Court dated 7-6-2005 has been assailed through this petition for leave to appeal.
3. I have gone through the record of the case and perused the statements of the legal heirs of Muhammad Asghar deceased. There is no doubt that respondents Nos.1 and 2 had been extended benefit under section 169, Cr.P.C. Which is clearly against law as they were principal accused in the case. The Investigating Agency could not file the challan if the case against principal accused was not proved during investigation. It is also clear from the statements of heirs of Muhammad Asghar deceased that they have not compromised with Shabbir Ahmed and Yasir Razzaq respondents but at the same time it is equally correct that the petitioner has failed to invoke the jurisdiction of the competent forum. The petitioner could and can still if so advised, file a private complaint. The learned Judge in the High Court has rightly held that the available remedy has not been availed.
The writ petition is filed if there is no other alternate remedy available to a person and it has repeatedly been held by this. Court that in presence of alternate remedy particularly in criminal cases, the High Court cannot exercise jurisdiction under section 44 of the Azad Jammu Kashmir Interim Constitution Act. No other point has been pressed. The instant petition for leave to appeal is therefore, dismissed.