2011 PLP 131 (YLR)

SH. AHMAD FAROOQ, J.--Through the instant Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed for setting aside the order dated 15-1-2010, whereby the learned Additional Sessions Judge, Sheikhupura, dismissed his petition under sections 22-A and 22-B, Cr.P.C. for registration of a case against the accused. The petitioner has also prayed for passing a direction to respondent No.2 to register an F.I.R. against the accused person on the basis of his application, dated 9-1-2010.

2. Brief facts, relevant for the disposal of the instant petition are than on 1-1-2010, at about 11-45 p.m., Rai Nasir, Police. Station Khanqah Dogran, along with Bashir and six unknown police officials forcibly entered into the house of the petitioner/Muhammad Yousaf and subjected the petitioner as well as his sons, namely, Mazhar Abbas and Waheed Abbas and his nephew, namely, Shahbaz and Muhammad Asif to physical and mental torture, in addition to molesting the modesty of the female inmates of the house. The petitioner contended that they were kept in illegal confinement by the said accused from 1-1-2010 to 6-1-2010 and the accused person snatched three mobile phones and hard cash of Rs.1,18,

000. The petitioner further contended that the injured persons got them medically examined on 8-1-2010 in pursuance of the order of Illaqa Magistrate, dated 7-1-2010. Thereafter, the, petitioner submitted an application to the District Police Officer, Sheikupura, for registration of a case against Rai Nasir, Bashir and other police officials of Police Station Khanqah Dogran, but the same was not accepted. The petitioner filed an application under sections 22-A and 22-B Cr.P.C. in the Court of learned Additional Sessions Judge, Sheikhupura, for registration of case against the accused but the same was also dismissed, vide order dated 15-1-2010. The petitioner alleged that he along with his sons, namely, Tanvir Hussain and Naveed Abbas have been falsely involved in a criminal case vide F.I.R. No.08 of 2010, dated 12-1-2010, registered in Police Station Khanqah Dogran, District Sheikhupura, under section 216, P.P.C. Hence, this petition.

3. Respondent No.2/District Police Officer, Sheikhupura, filed his report and parawise comments wherein he denied the conduct of any illegal raid at the house of the petitioner as well as maltreatment of the women folk. Respondent No.2 further contended that the complainant had given shelter to a proclaimed offender, namely Zulfiqar Ali, whereupon a raid was conducted on his house but the petitioner allowed the proclaimed offender to escape. Resultantly, an F.I.R. No.8 of 2010 dated 12-1-2010 under section 216, P.P.C., was registered in Police Station Khanqah Dogran, against the present petitioner and his sons. Lastly, the D.P.O. 'contended that the application, which was submitted by the present petitioner for registration of a case, was found baseless and has been consigned to record.

4. Learned counsel for the petitioner submitted that the petitioner has no relationship with the alleged proclaimed offender, namely, Zulfiqar Ali. He further submitted that a false case has been registered against the petitioner and his sons, on 11-1-2010, i.e. one day after he filed a petition under sections 22-A and 27-B, Cr.P.C. before the learned Sessions Judge, Sheikhupura for registration of a case against the accused persons. In support of his contention, learned counsel for the petitioner attached the medical reports regarding the injuries, which were sustained by Muhammad Yousaf, Waheed Abbas, Allah Ditta and Zaheer Abbas, Lastly the learned counsel for the petitioner argued that the order passed by the learned Additional Sessions Judge, Sheikhupura, on 15-1-2010, is against law as there is no observation regarding the non-commission of a cognizable offence by the accused. He maintained that the observation of the learned Additional Sessions Judge, Sheikhupura, to the effect that the proper remedy for the petitioner is to file a private complaint is also against law because in that eventuality, neither the names of the unknown accused would be discovered nor the stolen property would be recovered.

5. Conversely, the learned Assistant Advocate-General opposed the instant petition on the ground that the alleged occurrence was actually a raid, which was conducted on the house of the complainant by the police officials in order to arrest a proclaimed offender, namely, Zulfiqar Ali.

6. Arguments heard. Record perused.

7. Not only from the application of the present petitioner, dated 9-1-2010, which he submitted to District Police Officer, Sheikhupura, but also from the medical reports of Muhammad Yousaf, Waheed Abbas, Shahbaz Ahmad and Zaheer Abbas, prima facie, the commission of a cognizable offence is made out. There is no report in writing which could prima facie establish that the police officials raided the house of the present petitioner on 1-1-2010 for effecting the arrest of a proclaimed offender, namely, Zulifqar Ali. Similarly, prima facie, there is no evidence that the proclaimed offender, namely, Zulfiqar, was concealing himself in the house of the present petitioner on 1-1-2010. According to section 154, Cr.P.C, the Officer Incharge of Police Station is legally hound to reduce into writing every information relating to the commission of a cognizable offence. In this case, the petitioner submitted an application to District Police Officer, Sheikhupura, on 9-1-2010, which prima facie disclosed the commission of a cognizable offence but despite that no case has been registered against the accused persons. The order of the learned Additional Sessions Judge, Sheikhupura, dated 15-1-2010, is not in accordance with law, whereby he observed that the petitioner will not benefit, even if a case is registered against the accused because the police has not found his allegations as correct. It is pertinent to mention here that the.object of section 22-A Cr.P.C. is that when a complaint is lodged to Ex-officio Justice of Peace in respect of non-registration of a case, he would simply direct the police to entertain the complaint and if a cognizable offence is made out, then to proceed in accordance with the provisions of section 154, Cr.P.C. The Ex-Officio Justice of Peace under no provision of law can direct or even observe with regard to the nature of the offence, the commission of the offence or addition or deletion of relevant provisions of Pakistan Penal Code as the same exclusively falls within the jurisdiction of Investigating Officer or of the trial Court at the time of framing of the charge. Reliance is placed on Ishaq Lashari, Inspector v. The State (PLD 2009 Karachi 14). It has already been held in Sana Ullah v. S.H.O., Police Station Civil Lines, Gujrat and 3 others (PLD 2003 Lahore 228) that every information relating to the commission of a cognizable offence irrespective of its truthfulness or otherwise should be reduced into writing by the concerned police official after satisfying himself only to the extent that the information is in respect of a cognizable offence. It has been further held in Ijaz v. Additional Sessoins Judge and others (2009 PCr.LJ 724) that Ex-Officio Justice of Peace is not supposed to enter into any deeper controversy or to embark upon any inquiry for the determination of the veracity of the representation placed before him. The complainant, who alleges the commission of a cognizable offence not only has a right that his allegations should be recorded under section 154, Cr.P.C.' but also has a right that his allegations should be investigated and taken to its logical and legal conclusion/end.

8. In view of what has been IIstated above, the impugned order, dated 15-1-2010, passed by the learned Additional Sessions Judge, Sheikhupura, is not sustainable and the same is accordingly set aside. The instant petition is accepted and respondent No.2/District Police Officer, Sheikhupura, is directed to register an F.I.R. against the accused persons on the basis of the application of the present petitioner dated 9-1-2010, which disclosed the commission of a cognizable offence. Office is directed to send a copy of this order to respondent No. 2/Distrirt Police Officer, Sheikhupura, for compliance. N.H.Q./M-465/L Petition accepted.