RAI ASHRAF and others vs MUHAMMAD SALEEM BHATTI and others

ORDER

' CH. IJAZ AHMED, J.---Petitioners have sought leave to appeal against the order of the Lahore High Court passed in Writ Petition No,11774 of 2007 filed against the order of Additional Sessions Judge, Lahore dated 24-11-2007, wherein prayer for registration of case against the petitioners was dismissed.

2. Detailed facts have already been mentioned in para. 2 of the impugned order of the High Court, However, necessary facts out of which the present petition arises are that respondent No,1 filed an application under sections 22-A and 22-B, Cr.P.C. Before the Sessions Judge/Ex-Officio Justice of the Peace, Lahore who entrusted the same to the Additional Sessions Judge/Ex-Officio Justice of the Peace, Lahore, on the allegation that petitioners had demolished the outer wall and gate of respondent No,1 with police aid and had taken house-hold articles, gold ornaments and cash amount which was lying in the boxes and almirahs. The learned Additional Sessions Judge/Ex- Officio Justice of the Peace, Lahore after securing report from the concerned S.H.O. And after providing opportunity of hearing, dismissed application of the respondent No,lvide order dated 24- 11-2007. Respondent No,1 being aggrieved filed aforesaid constitutional petition before the High Court which was disposed of with the observation that the copy of the writ petition be sent to the concerned S.H.O. Whe was directed to look into the matter and pass appropriate orders stricty in accordance with law. Hence, this petition.

3. Learned counsel for the petitioners submits that the learned Additional Sessions Judge/Ex-officio Justice of the Peace, Lahore after providing opportunity of hearing to all concerned, had dismissed the petition of respondent No,1 with cogent reasons which was reversed by the High Court while exercising power under Article 199 of the Constitution without adverting to the mandate of Article 199 wherein it is specifically mentioned that petition is not maintainable in presence of alternate remedy available to the respondent No,1 in the shape of private complaint before the competent Court.

4. Learned counsel for the respondent No,1 has supported the impugned order and further urges that the learned High Court had not directed the concerned S.H.O. To register a case against the petitioners rather he was directed to look into the contents of the petition and then pass appropriate orders strictly in accordance with law which is the duty of the S.H.O. Concerned in terms of section 154, Cr.P.C. He further submits that the order of High Court is in consonance with the law laid down by this Court in Muhammad Bashir's case PLD 2007 SC 539.

5. We have given our anxious consideration to the contentions of learned counsel for the parties and have perused the record. It is a settled law that each and every case is to be decided on its own peculiar facts and circumstances as law laid down by this Court in Muhammad Saleem's case 1994 SCM R 2213 and Mushtaq Ahmed's case PLD 1973 SC 418. The relevant observations in Mushtaq Ahmed's case Supra is as follows:-- "Everything said in a judgment and more particularly in a judgment in a criminal case must be understood with great particularity as having been said with reference to the facts of that particular case".

6. It is admitted fact that petitioners have alternate remedies to file I private complaint before the competent Court, therefore, constitutional petition was not maintainable and the High Court has erred in law to send the copy of the writ petition to the S.H.O. Concerned. The direction of the High Court is not in consonance with the law laid down by this Court in Jamshaid Ahmed's case (1975 SCMR 149). It is also a settled law that the learned High Court had no jurisdiction whatsoever to decide C the disputed questions of fact in constitutional jurisdiction. In the case in hand, .Respondent No,1 has more than one alternate remedies ass alleged by him in the application that he had secured restraining order against the petitioners from the civil Court, therefore, Additional Sessions Judge/Ex-Official Justice of the Peace observed that respondent No,1 had to avail appropriate remedy for violation of status quo before the civil D Court under the provisions of C.P.C.

Vide Order XXXIX, Rules 3 and 4, C.P.C. It is also admitted fact that there is a dispute qua the property in question between the parties as alleged by the petitioners and observed by the Courts below. It is a settled law that constitutional jurisdiction is discretionary in character which is to be exercised after proper application of mind with cogent reasons and same should not be exercised arbitrarily. The learned High Court had erred in law to exercise discretion in favour of the respondent No,1 without realizing that the respondent No,1 had filed application before the Additional Sessions Judge/Ex-Officio Justice of the Peace to restrain the public functionaries not to take action against him in accordance with the LDA F Act 1975, Rules and Regulations framed thereunder, therefore, respondent No,1 had filed petition with mala fide intention and this aspect was not considered by the learned High Court in its true perspective.

7. For what has been discussed above, this petition is converted into appeal and is allowed.

Impugned order of the Lahore High Court Lahore is set aside with no order as to costs.