2011 PLP 425 (YLR)

SARDAR SHAUKAT HAYAT, J.

Petitioners seek quashment of order dated 29-1-2009 under section 561-A, Cr.P.C. passed on the application of A respondent No.1, under section 22-A Cr.P.C. by the learned Additional Sessions Judge-VII, Peshawar.

2. Briefly, facts of the case are that respondent No.1 through Daily Diary No.7 dated 11-12-2008 reported the matter to Illaqa Police that on the relevant day Bailiff of the civil court while exercising the warrant of possession restored the possession of Shops Nos.34 and 36 situated at Shah Shopping Centre, Jamrud Road, opposite Hayatabad Peshawar to the tenants who handed over the same to respondent No.1 (son of the landlord) for reconstruction of the demolished walls and also for safe keeping. On 11-12-2008, respondent No.1 constructed the demolished walls but on the same date at 16-00 hrs the petitioners/accused while duly armed with kalashinkovs unlawfully came therein and while wrongfully confining respondent No. 1 also threatened him with causing his death and demolished the reconstructed walls, causing damage to the amount of Rs.125,000 and petitioners after the occurrence decamped from the scene.

3. Instead of registering the case against the petitioners, the matter was referred by police to the DPP for opinion. From the record, it reveals that the matter under opinion was not finalized till 18-12-2008. On 20-12-2008 the respon dent No.1 filed an application under section 22-A, Cr.P.C. for registration of a criminal case under sections 348, 440, 455, 506, 148, 149 and 379, P.P.C. against the petitioners in the court of learned Sessions Judge, Peshawar. The learned Additional Sessions Judge, Peshawar while hearing learned counsel for the parties accepted the application of respondent No.1 and directed the local police/S.H.O. Police Station, Hayatabad to register a case under the relevant law, hence the instant quashment petition.

4. Learned counsel for accused/ petitioners during the course of arguments produced an FIR No.110 dated 11-12-2008 under sections 506/342/ 427/148/149, P.P.C. Police Station Hayatabad, stating therein that a case has already been registered against the accused/ petitioners on the report of respondent No.1 and the subsequent impugned order dated 29-1-2009 is illegal and without lawful authority. Reliance is placed on 2008 YLR 2017.

5. On the other hand, learned counsel for respondent No.1 argued that the petitioners have concealed the registration of case against them vide F.I.R. No.110 dated 11-12-2008 not only before this court in its quashment petition but also before the learned Additional Sessions Judge. He further argued that due to delay in registration of case by the police, respondent No.1 moved application under section 22-A, Cr.P.C.

6. Learned counsel for the State adopted the arguments of learned counsel for respondent No.1 and supported the impugned order of respondent No.2. Arguments heard. Record perused.

7. From perusal of record, it reveals that respondent No.1 reported the matter to the police, which was entered in Madd No.7 dated 11-12-2008. Once the allegation with respect to the commission of a cognizable offence was communicated to the police, the police was duty bound to register a case under relevant provisions of law. The delay caused by the police compelled the respondent No.1 to approach the Justice of Peace for directing the police to register case against the petitioners. The learned Justice of Peace has directed the police to register a case under the relevant law.

8. During the entire proceedings before the Justice of Peace, it was not disclosed by any of the parties that already police has registered the case against petitioners. Presently There exists an F.I.R. No.110 dated 11-12-2008 against the petitioners and also the learned Justice of Peace has ordered the police to register case against petitioners under the relevant law. Police are under a statutory duty under section 154 Cr.P.C. and have a statutory right under section 156 Cr.P.C. to investigating a cognizable offence, whenever a report is made to it disclosing the commission of offence. High Court, under section 561-A, Cr.P.C. would be reluctant to interfere with the investigation of the case as it being the sole prerogative of the investing agency. Normally the court under section 561-A cannot scrutinize the conduct and manner of investigation, as the same cannot be substituted by Court.

8. This court also cannot interfere in the administrative order of the Justice of Peace regarding registration of case under section 561-A, Cr.P.C. Investigation in the case is not complete and no challan has been submitted in the court when the petition for quashment of the impugned order dated 29-1-2009 under section 22-A, Cr.P.C. was filed. High Court, under its inherent powers may quash judicial proceedings, if it was of the view that the proceedings amount to an abuse of the process of Court. As no proceedings were pending in Court at the time of filing the quashment proceedings, there exists no abuse of process of the Court, hence this Court has no power to quash the F.I.R. under section 561-A, Cr.P.C. thus, the instant quashment petition is dismissed. H.B.T./392/P Petition dismissed.