2009 PLP 436 (YLR)

MUHAMMAD ALAM KHAN, J.

Petitioner Tahir Shahnawaz has filed the instant quashment petition under section 561-A, Cr.P.C. against the order of learned Additional Sessions Judge-VI, D.I.Khan dated 12-8-2008 in his capacity as Ex-office Justice of the peace through which the complaint filed by respondent No.2 was accepted and local police was directed to register a case against the petitioner.

2. Facts of the case are that respondent No.2 Muhammad Nazir son of Fiaz Muhammad submitted an application to the D.I.G D.I. Khan Region alleging therein that the petitioner is owner in possession of 28 Kanals 3 Marlas of land situated in village Rakh Mandhra, Tehsil Paharpur, District Dera Ismail Khan. He was informed on 12-6-2008 that in the property of the petitioner, one Tahir Shahnawaz son of Shah Nawaz is paving the path. On this information, he reached the spot and found that the petitioner along with three other persons was present in the fields armed with Kalashnikovs and pistols and were paving a path by illegally interfering in the possession of respondent No.2. All the four persons including Tahir Shahnawaz threatened him at gunpoint and was kept under illegal confinement but subsequently on the request of one Haji Farooq, respondent was allowed to go but with a threat that in case any proceedings were launched, he will be dealt with severely. No action was taken on this application of the respondent by the functionaries of the Police Department and subsequently on 23-7-2008 he filed an application under section 22-A, Cr.P.C. to the learned Sessions Judge empowered as Justice of the Peace. The learned Justice of the Peace, after obtaining the report of local police, vide order dated 12-8-2008, ordered the registration of the case against the petitioner Tahir Shahnawaz and hence, the instant quashment petition.

3. It was submitted by learned counsel for the petitioner that without any notice to the petitioner, the learned Justice of the Peace has ordered the registration of the case which is not warranted under the law and the proceedings and consequent order for registration of the case are liable to be quashed.

4. On the other hand, learned counsel for respondent No.2 and Deputy Advocate-General for the State appearing on pre-admission notice submitted that the application and consequent inquiry by the local police fully established the commission of a cognizable offence and thus, under the law the learned Justice of the Peace was competent to pass an order for the registration of the case.

5. I have heard the learned counsel for the parties and have gone through the record of the case.

6. Once the allegation with respect to the commission of a "cognizable offence is communicated to the police, the police is duty bound to register a case and in case of refusal or resorting to delaying tactics, the aggrieved person is well within his right to approach the Justice of the Peace under section 22-A, Cr.P.C. with a prayer for registration of the case. Regarding non-issuance of notice, the law is clear on the point that whenever the learned Justice of the Peace comes to the conclusion that a cognizable offence is discernable from the data available on the record, he can pass an order even in the absence of the respondent as when cognizable offence is reported to the police, the accused is not to be given a notice under section 154, Cr.P.C. The non-issuance of a notice is not fatal to the registration of the case in view of the dictum laid down in the case of Muhammad Aslam v. Additional Sessions Judge and others 2004 PCr.LJ Lahore 1254. So, the order of the learned Justice of the Peace is strictly in accordance with law, justice and the same is with jurisdiction.

7. The other important point involved in this case is that this Court will be reluctant to interfere in the investigation of the case as the same will be a direct interference in the domain of prosecution agency. The accused has got remedy to approach the trial Court when the case is put in Court to seek his remedy under the provisions of section 249-A, Cr.P.C. as held in the case of Brig (Retd) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others (1994 SCMR 2142).

8. In view of the facts and circumstances of the case narrated above, there is no force in the instant quashment petition which is dismissed init limine. H.B.T./208/P Petition dismissed.