Badshah Jan Wazir Vs The State

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH

(Judicial Department)

W.P No. 1298-A/2021

JUDGMENT

Date of hearing 03.11.2021

Petitioner by: Mr. Aziz Ahmed Khan, Advocate.

Respondents by: Sardar Muhammad Asif, Additional AG for the state and Mr. Rasheed ul Haq Qazi, Advocate for the GDA. .

MOHAMMAD IBRAHIM KHAN, J.- The

petitioner Badshah Jan Wazeer, is a Pakistani born American medical doctor who is resident of house No. 272 Street No. 6 Sector F-10/3 Islamabad. He is booked in case FIR No. 182 dated 24.10.2021 under Section 188 PPC of Police Station Khanpur, Tehsil & District Haripur. The complainant of this case is Noor-ul-Haq, Assistant Commissioner Khanpur. Reason as given in this petition is that he has been indicted on account of his money dispute and furnishing him the detail of expenses from Mr. Nazir Butt, a retired General, who had sold him landed property, out of which the petitioner has constructed a

house, where he was carrying out some repairs and maintenance work within its boundaries. This got annoyed the retired General who had thus with malafide intention through the complainant (Assistant Commissioner Khanpur), managed to lodge FIR against him, hence this petition with the prayer:-

“On acceptance of the instant writ petition, the impugned FIR No. 182 dated 24.10.2021 under Sections 188 PPC Police Station Khanpur Tehsil & District Haripur may graciously be ordered to be set-aside/quashed. Any other relief deemed fit and proper in the circumstances of the case.”

2.When this petition was taken up for its consideration, while hearing Writ Petition No. 975-A/2021, in which this Court had already passed an order dated 29.09.2021, directing the respondents not to take any adverse action against the petitioners in the said petition, despite the fact that such

injunctive order was in field, the Assistant Director GDA Makhnial had registered a case vide FIR No. 184 dated 27.10.2021. In the said petition, in today’s order, learned counsel for the GDA Mr. Rasheed ul Haq Qazi, Advocate has come up with a commitment that no adverse action shall be taken against the petitioners as the FIR No.

184 dated 27.10.2021 under section 188 PPC was registered under misconception and against the order of this Court dated 29.09.2021, to be later withdrawn. Taking advantage of the said statement before the Court, Mr. Aziz Ahmed Khan Advocate on behalf of the petitioner Badshah Jan Wazeer has taken an opportunity, came to the rostrum and stated before the Court that FIR impugned in this petition is similarly registered by Noor ul Haq, Assistant Commissioner Khanpur, which too is under misconception and in violation of the order in WP No. 975-A/2021 dated 29.09.2021, which requires to be taken for consideration today.

3.Sardar Muhammad Asif AAG

present in Court in some other cases, was

called up to the rostrum along with Mr.

Rashid ul Haq Qazi, Advocate for GDA.

Both of them have candidly admitted that on consistency ground, this FIR No. 182 dated 24.10.2021 under Section 188 PPC of Police Station Khanpur, Haripur is also in violation of order dated 29.09.2021 of this Court in WP No. 975-A/2021.

4.While having a glance over the FIR which is sought to be quashed under this petition, the complainant Noor ul Haq, Assistant Commissioner Khanpur has concealed about the fact of any office order which has been violated. Even timings when he had gone for visit/checking of the house of the accused/petitioner on 24.10.2021 at 17:40 hours, is beyond our understanding as to how in mountainous region, any such construction was underway at said dark odd hours. If at all any renovation work was in progress in the house of the petitioner, it was never the violation of any office order of the Deputy Commissioner Haripur dated 07.08.2021.

Mere renovation in the house of the petitioner would not constitute construction as

prohibited in the said order and is permissible, for which no NOC would be required of the concerned authorities.

5.Over and above, there is no legal value of this FIR No. 182 dated 24.10.2021 on the ground that lodger of the FIR is an Assistant Commissioner Khanpur, complaining of violation of the orders of worthy Deputy Commissioner Haripur, who is his subordinate and was not competent to register the same. Reference may be made to the case of “Ghulam Rasool and 3 others Vs.

The State (1998 PCr.L.J 584)” wherein it was held that:-

“In case of violation of an order passed by District Magistrate, within the meaning of section 144 Cr.P.C. the machinery of law can only be moved by filing complaint by order of such public servant who promulgated real order or by his superior as envisaged under section 195(i)(a) Cr.P.C. In the present case, there ought to have been a complain as envisaged under section 4(h) Cr.P.C. by the District Magistrate, Tharparker himself or by his superior i.e. Home Secretary and under no

circumstances, supervising Tapedar at the dictates of Mukhtiarkar who is subordinate to District Magistrate could file F.I.R.”

The Same view was followed in

the case of “Dr. Muhammad Ibrahim Khan and 2 others Vs. The State (2001 YLR 566) and Malik Muhammad Ayoob Awan Vs.

Akhtar Lodhi, S.H.O Police Station Shahrah-e-Faisal Karachi and 2 others (2001 PCr.L.J 1196).”

6.In view of the above, it is held that no offence within the meaning of Section 188 PPC is made out in the light of allegations contained in the FIR, therefore, proceeding further in the matter would be bootless exercise resulting into abuse of process of law. We therefore, allow this petition and accordingly, FIR No. 182 dated 24.10.2021 of PS Khanpur, District Haripur stands quashed.

Announced.

JUDGE

JUDGE

Tufail./ Hon’ble Mr. Justice Mohammad Ibrahim Khan Hon’ble Mr. Justice Shakeel Ahmad