Hamayun Ashraf VS Bilal Faisal Amin & others

Form No: HCJD/C-121

ORDER SHEET.

IN THE ISLAMABAD HIGH COURT, ISLAMABAD,

(JUDICIAL DEPARTMENT).

Writ Petition No. 2563 of 2021 Hamayun Ashraf Awan Versus Bilal Faisal Amin and others. S.No. of Date of Order with signature of Judge and order/ order/ that of parties or counsel where proceeding proceeding necessary.

(03)07.05.2024 Khawaja Shahid Rasool Siddiqui, Advocate for the petitioner.

Instant writ petition has filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayer:-

“In the circumstances, it is, therefore, most humbly prayed that the instant writ may kindly be accepted, the impugned orders dated 19.05.2021 passed by Additional Sessions East Islamabad and Order dated 23.09.2020 passed by learned Judicial Magistrate-30 Islamabad-East may be set aside, the petition U/S 249-A Cr.P.C of the respondent No. 1 may be rejected and the case be remanded back to the trial Court to carry the summary trial according to law in the interest of justice and equity.

Writ Petition No. 2563 of 2021 Any other relief, which this Honourable Court may deem fit and proper, may also be awarded”.

02.Succinctly stated facts mentioned in the writ petition are that respondent No. 1 filed an application against the petitioner at Police Station Bhara Kahu, Islamabad.

Thereafter the police carried out thorough investigation in the matter and reached on the conclusion that the application filed by respondent No. 1 is not based on facts, therefore, the police started proceedings under section 182 PPC against respondent No. 1 and chalked out a Qalandra against him. Thereafter, respondent No. 1, during the proceedings before learned trial Court appeared before the Court and filed an application under section 249-A Cr.P.C, which was accepted by learned Judicial Magistrate Section-30, East-Islamabad vide order dated 23.09.2020. Being aggrieved, the petitioner filed revision petition against the said order, which was dismissed by learned Additional Sessions

Writ Petition No. 2563 of 2021 Judge-II, East-Islamabad vide order dated 19.05.2021, hence the instant petition.

03.Learned counsel for the petitioner, inter-alia, contends that both the orders passed by learned lower Courts are erroneous, not tenable under the law;

learned trial Courts have failed to apply their conscious judicial mind while deciding the impugned orders; the impugned orders are against the law and facts of the case; learned trial Courts have committed material irregularity while passing the impugned orders and has prayed to accept the instant writ petition.

04.Arguments heard, record perused.

05.Respondent No. 1 filed an application before S.H.O, Police Station Bhara Kahu, Islamabad, against the petitioner and unknown person alleging therein that the accused person has tried to dispossess the complainant on his land and issued threats of life and dire consequences.

Writ Petition No. 2563 of 2021

06.Upon the application, S.H.O concerned called the petitioner who provided sufficient evidence in his favour, so the application/complaint filed by respondent No. 1 was closed.

07.By invoking the provision under section 182 PPC, S.H.O P/S Bhara Kahu, Islamabad, filed Qalandra against respondent No. 1/complainant.

Respondent No. 1/complainant filed application under section 249-A, Cr.P.C, which was allowed and he was acquitted by learned Judicial Magistrate, Section-30, East-Islamabad vide order dated

08.The petitioner instead of filing appeal against said acquittal order, filed criminal revision under section 435 & 439- A, Cr.P.C, which was also dismissed by Court of learned Additional Sessions Judge-II, East-Islamabad vide order dated

Writ Petition No. 2563 of 2021

09.As respondent No. 1 has acquitted by learned trial Court under section 249-A, Cr.P.C, the instant writ petition against the said acquittal order is not maintainable under the law.

10.For the convenience, section 182 P.P.C is reproduced herein under;

182.False information with intent to cause public servant to use his lawful power to the injury of another person:

Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant :-

(a)to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or

(b)to use the lawful power of such public servant to the injury or annoyance of any person. Shall be punished with imprisonment of either description for a term which may extend to:-

(a)seven years in case the offence in which false information is given is punishable with death;

(b)five years in case the offence in which false information is given is punishable with imprisonment for life; or

(c)one-fourth of the longest term of imprisonment or with fine as is provided for the offence in which false

Writ Petition No. 2563 of 2021 information is given and such offence is not covered under clause (a) or clause (b).

11.Further, section 195(1), Cr.P.C, provides that:

195(1) No Court shall take cognizance:-- Prosecution for contempt of lawful authority of public servants. (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 subordinate.

Which gives the power to file Qalandra by the concerned public servant; it does not give any power to private person to file Qalandra against whom frivolous application/proceedings are initiated.

12.Further, there are concurrent findings of both the learned Courts below against the petitioner. In case of concurrent findings of the Courts below, scope of the constitutional petition becomes very limited. The petitioner has failed to point out any misreading or non- reading of the evidence. It has been laid

Writ Petition No. 2563 of 2021 down in a case titled as Syed Arif Ali Sabri Vs. Abdul Samad through L.Rs.

and 2 others (2008 YLR 2309) that:

"When there are concurrent findings of Courts below, the scope of the constitutional petition for interference is very limited and it can only be interfered when the orders of the Courts below are fanciful or based on misreading or non- reading of the evidence".

The same view has also been taken in the cases titled as Sadruddin Vs. Aslam Madad Ali and others (PLD 2008 Karachi 2005) and Khuda Baksh Vs. Muhammad Sharif and another (1974 SCMR 279).

13.It is well settled that certiorari is only available to quash a decision for an error of law. It will also be issued for correcting errors of jurisdiction when an inferior Court or a tribunal acts without jurisdiction or in excess of its jurisdiction, or fails to exercise its jurisdiction or where the Court or a tribunal acts illegally in exercise of its undoubted

Writ Petition No. 2563 of 2021 jurisdiction and it decides a matter in violation of the principle of natural justice. The High Court while issuing a writ of certiorari acts in exercise of supervisory and not appellate jurisdiction. The High Court in exercise of its writ jurisdiction will not review the findings of facts reached by the inferior Court or a tribunal. Reliance may be made to the following case laws:

(i)Amjad Khan Vs.

Muhammad Irshad (Deceased) through LRs, (2020 SCMR

(ii)President All Pakistan Women Association, Peshawar Cantt Vs. Muhammad Akbar Awan and others (2020 SCMR

(iii)Chief Executive MEPCO and others Vs. Muhammad Fazil and others (2019 SCMR

(iv)Chairman, NAB Vs.

Muhammad Usman and others (PLD 2018 SC 28).

(v)Shajar Islam Vs.

Muhammad Siddique and 2 others (PLD 2007 SC 45).

14.For what has been discussed above, learned counsel for the petitioner has

Writ Petition No. 2563 of 2021 failed to point out as to how the concurrent findings of the learned Courts below are the consequence of error of law or without jurisdiction or in excess of jurisdiction, hence instant writ petition is dismissed in limine being meritless.

(TARIQ MEHMOOD JAHANGIRI)

JUDGE

Bilal /* Approved for reporting.