MUHAMMAD SALIM Versus D.C.O.

ORDER

SH. KHIZAR HAYAT,, J: -- This Intra-Court Appeal is directed against the order, dated 9-9-1990, passed by learned Single Judge dismissing Writ Petition (No.882 of 1990) of the appellant seeking direction to respondent No.l for registering a case based on his cross-version of the incident already reported under F.I.R. No.139/90 lodged by Sadiq Masih, son of Lasman Masih, respondent No.2.

2. Sadiq Masih, respondent No.2, got F.I.R. No:139/90 registered at P.S. Yazman on 29-6-1990 against appellant's party alleging that his nephew Yaqoob aged 10 years quarrelled with Khalid aged 8 years, a nephew of Sadiq Masih, appellant. As a sequel to this quarrel, later in the day, at about 10 p.m., Sharif Masih, brother of the appellant, started abusing him and his family members standing in the street near their house, whereupon they came out to stop him from hurling abuses. At this 13 persons of appellant's party armed with deadly weapons emerged from appellant's- house and fell on them. In this attack 7 persons were injured including Younus Masih, who sustained fatal injury with hatchet on his head. Initially, the F.I.R. was registered under sections 148 and 307/149, P.P.C. and section 302, P.P.C. was added after Younus died of the head injury. Challan against 12 out of 13 persons named in the F.I.R. has been submitted in Court.

3. The appellant allegedly, made an application to the S.H.O/respondent No.l during investigation of the aforementioned F.I.R. alleging that respondents Nos.2 to 18 (including Younus deceased) in order to take revenge of Yaqoob's beating trespassed into the house of Khalid's father duly armed and forcibly brought Khalid out of the house and belaboured him. In the process seven persons inclading two ladies were injured when they intervened to rescue Khalid. The S.H.O./respondent did not register the case, therefore, he filed. a writ petition in this Court for issuing direction to the S.H.O. but it was dismissed by the learned Single Judge with following observation:---

" ....I find that a case under section 302/307/324/325/148, P.P.C. with regard to the incident stated in this petition was registered against the petitioner's party on 29-6-1990 and by now the challan has been submitted in the Court. According to the report submitted by the S.H.O., the version of the occurrence as stated in the petition is incorrect and the petitioner party was aggressor. Alternative remedy of filing complaint is available to the petitioner. In the peculiar circumstances of the case, I do not feel inclined to exercise Constitutional jurisdiction in favour of the petitioner. He may file complaint if so advised."

4. Feeling aggrieved thereby, instant appeal has been filed. Learned counsel appearing on behalf of the appellant argues that the respondent/S.H.O. was under a statutory duty to register a case based on cross-version contained in his application disclosing commission of cognizable offence and that the learned Single Judge erred in law by having declined to issue direction to the respondent/S.H.O. to register second F.I.R. and investigate the same in accordance with law. Further, argues that no doubt that an alternative remedy of filing a private complaint is available to the appellant but that is not an `adequate remedy' because in that event the appellant would be deprived of the circumstantial evidence, which the police would collect by recovering weapons of offence etc. at the pointation of respondents/accused, therefore, issuance of writ prayed for was the only efficacious remedy.

5. Having considered the contentions of the learned counsel for the appellant and the relevant law. we find that the impugned order is anchored on justified and legal grounds for the reasons enumerated below:---

(i) Extraordinary Constitutional jurisdiction of this Court is ordinarily invoked when no other adequate remedy is availabie to the petitioner, and here alternate adequate remedy of filing private complaint is very much available to the appellant.

(ii) It is now well-settled that when an F.I.R. stands already registered regarding an incident, no direction for registering second F.I.R. based on cross-version put forth by other side can be issued because it is not so provided in law, as has been held by a Division Bench of this Court in Mushtaq Ahmad's case 1984 P Cr. L J 1454. Needless to say that if the Police finds that free fight had taken place and that both parties ought to be challaned then it can do so even in the absence of registration of a second F.I.R.

(iii) The Constitutional jurisdiction as enshrined in Article 199 of the Constitution of the country is essentially a discretionary one and a High Court is under no obligation to grant relief in exercise thereof as has been held in Jamshed Ahmad's case 1975 S C M R 149 wherein their Lordships of the Supreme Court in the similar situation refused leave to appeal riled against High Court's order declining direction to S.H.O. to register a cross-case, with following observation:---

"The petition could be thrown out on the short ground that High Court was under no obligation to grant the relief prayed for by the petitioner. It was a matter resting entirely in its discretion and there is nothing to indicate that it was improperly exercised."

(iv) The contention of the learned counsel that fling of private complaint is not an adequate remedy for the appellant because in that event he would be deprived of circumstantial evidence, the police would have I collected in the shape of recovery of weapons of offence from the I accused/respondents is misconceived because the occurrence took place about four months earlier and recovery of any weapon recovered would hardly be of any consequence as blood stains are not expected to be found thereon.

6. For what has gone above, we find that impugned order calls for no interference. The appeal, is therefore, dismissed in limine. I.CA. dismissal.

N.H.Q./S-369/L Appeal dismissed