2011 P Cr. L J 1569
[Quetta]
Before Qazi Faez Isa, C.J. and Muhammad Noor Meskanzai, J
Moulvi MUHAMMAD ISHAQ ---Petitioner
Versus
ZUBAIR AHMED and 2 others ---Respondents
C.P. No. (S)28 of 2010, decided on 24th May, 2010.
Constitution of Pakistan ---
----Art. 199---Penal Code (XLV of 1860), Ss.193 & 211 ---Criminal Procedure Code (V of
1898), S.195 ---Giving false evidence and making false charge ---Constitutional petition ---
Maintainability ---Petitioner, father of two accused, was aggrieved of judgments of two courts
below whereby said accused were convicted and sentenced and that his complaint under Ss.193
and 211, P.P.C. by Magistrate was not entertained ---Petitioner was not a party in the proceedings
carried out in consequence of F.I.R. ag ainst his sons ---Relief prayed for by the petitioner in
constitutional petition did not fall within the seisin of Art.199 of the Constitution ---To maintain
constitutional petition two prerequisites must be satisfied; firstly petitioner must be an aggrieved
person; and secondly no alternative and efficacious remedy should be available to the petitioner --
-Both said prerequisites being missing in the case, judgments passed by lower forums were
assailable by accused persons themselves and not by their father th rough constitutional petition
and alternative remedy by way of filing revision petition was available to accused persons ---
Judicial Magistrate and Sessions Judge in circumstances, had committed no illegality in non -
entertaining complaint filed under Ss.193 & 211, P.P.C. -Petition was dismissed.
Petitioner in person.
Abdul Rahim Mengal, Assistant A. -G. for Respondents.
Date of hearing: 13th May, 2010.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. ---Petitioner is aggrieved of judgment .dated 17th
March, 2010 passed by Judicial Magistrate, Dera Murad Jamali, whereby; two sons of petitioner
were found guilty and sentenced and also aggrieved of the judgment dated 27th A March, 2010
passed by Sessions Jud ge, Dera Murad Jamali, whereby appeal filed by convicts was dismissed,
besides the grievance of petitioner for non -entertaining of complaint under sections 193 and 211,
P.P.C. by Judicial Magistrate, Dera Murad Jamali.
2. Succinctly facts as advanced by petitioner are that F.I.R. No.89 of 2009 lodged with Police
Station, Dera Murad Jamali culminated in filing of challan before the Judicial Magistrate, Dera
Murad Jamali against Muhammad Adam and Muhammad Musa sons of petitioner. Case was
proceeded with by the Judicial Magistrate and proceedings so conducted resulted in conviction
of Adam and Musa vide judgment dated 17th March, 2010. The convicts challenged their
conviction before learned Sessions Judge, Dera Murad Jamali, which was maintained by the
learne d Sessions Judge by dismissing the appeal on 27th March, 2010. According to petitioner,
Zubair Ahmed P.W.4 while making statement before Judicial Magistrate Dera Murad Jamali
made substantial improvement in his statement, which gave rise to an occasion to petitioner for
filing a complaint under sections 193 and 211, P.P.C. The complaint was not entertained by the
Judicial Magistrate, Dera Murad Jamali.
3. The petitioner appeared in person, reiterated the contents of his petition and submitted that the
statement recorded before the trial Court by P.W.4 was false, contradictory and material
improvements were made, but the trial Court as well as appellate Court did not take into
consideration the nature of the statement and illegally convicted the sons of pet itioner. It was
strenuously urged by the petitioner that the improvements made were material and apparently a
false statement was made. The complaint filed by the petitioner for initiating proceedings under
sections 182, 193 and 211, P.P.C. was illegally n ot entertained, whereas by detention of sons of
petitioner for four months, a loss of Rs.60,000 was caused to petitioner, which was because of
false statements made by Zubair Ahmed and Abdul Ghafoor. He prayed for setting aside of both
the' judgments and r equested for direction to subordinate Court to entertain :complaint.
4. On the other hand, Mr. Abdul Rahim Mengal, learned Assistant Advocate -General raised
objection upon maintainability of petition and submitted that none of the reliefs claimed by the
petitioner constitutes the subject -matter of a Constitutional Petition. It was next contended that
petitioner has got no locus standi to file this petition before this Court.
5. We have heard petitioner and learned Assistant Advocate -General and perused the record. At
the very outset, it is pertinent to mention that petitioner is not a party in the proceedings carried
out in consequence of F.I.R. No. 89 of 2009. The perusal of petition reflects that the relief so
prayed for by the petitioner definitely do es not fall within the seisin of Article 199 of the
Constitution of Islamic Republic of Pakistan. To maintain a Constitutional Petition within the
ambit of Article 199 of Constitution, two prerequisites must be satisfied. No. 1 petitioner must be
an aggrie ved person and secondly no alternative and efficacious remedy should be available to
petitioner. In our considered opinion, both the prerequisites as mentioned hereinabove are
missing. So far as the conviction recorded by trial Court and upheld by the appe llate Court is
concerned, suffice it to observe that the judgments passed by the lower forums were assailable by
the convicts themselves through the provisions of Cr.P.C. and not by petitioner through this
Constitutional Petition, secondly the alternative remedy by way of filing revision petition was
available to the convicts/appellants themselves, hence this petition to such extent is not
maintainable, as in any case petitioner cannot be treated an aggrieved person within the meaning
of Article 199 of the Constitution.
6. As far as the grievance for non -entertaining the complaint dated 31st March, 2010 under
sections 193 and 211, P.P.C. is concerned, suffice it to observe that there is a bar provided by
section 195, Cr.P.C. in entertaining the same. For r eady reference, section 195, Cr.P.C. is
reproduced as under: --
"195. Prosecution for contempt of lawful authority of public servants : Prosecution for
certain offence against public justice: Prosecution for certain offences relating to
documents given in evidence: (1) No Court shall take cognizance --
(a) of any offence punishable under sections 172 to 188 of the Pakistan Penal Code, except,
on the complaint in writing of the public servant concerned, or of some other public
servant to whom he is subordin ate;
(b) of any offence punishable under any of the following sections of the same Code, namely,
sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211, and 228, when
such offence is alleged to have been committed in, or in relation to, any proceedings in
any Court, except on the complaint in writing of such Court or of some other Court to
which such Court is subordinate; or"
So in view of the bar contained vide subsection (b) of section 195, the Judicial Magistrate and
Sessions Judge committed no illegality in non -entertaining the said complaint, if at all filed.
In the light of above discussion, petition filed by petitioner is not maintainable, as such is
dismissed in limine.
H.B.T./62/Q Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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