2009 PLP 1533 (YLR)

NADEEM AZHAR SIDDIQI, J.--By filing this criminal miscellaneous application, the applicant has impugned the order dated 12-7-2007, whereby the learned Sessions Judge/Justice of Peace, Umerkot, dismissed the application moved by co-accused Ghulam Hussain, praying therein to reconsider and recall the order dated 7-7-2007, passed on application under sections 22-A and 22-B, Cr.P.C. moved by respondents Mst. Parveen.

2. Briefly, respondent No.2 had filed a direct complaint against proposed accused Muhammad Asif (Applicant) and others for allegedly committing trespass in her house and stealing away the household as well as dowry articles of her daughter, which was dismissed by Sessions Judge vide order dated 7-7-2006. During pendency of such direct complainant the respondent No.2 had submitted an application before the Honourable Supreme Court of Pakistan, levelling the same allegations against the applicant and others, in which it was held by the Honourable Supreme Court that the complaint was motivated, as such no action was called for and further proceedings were dropped. Thereafter the respondent No.2 after about one and half years again filed an application under sections 22-A and 22-B, Cr.P.C. against the applicant and other nominated accused persons for commission of alleged offence of trespass into her house, demolishing the same and also committing robbery, which application was allowed and the learned Sessions Judge Umerkot by his order dated 7-7-2007 directed the D.P.O. Umerkot to get registered F.I.R. against the applicant and other co-accused. Against the said order co-accused Ghulam Hussain filed an application for reconsideration and recalling the order dated 7-7-2007, which was dismissed by learned Sessions Judge Umerkot vide order dated 12-7-2007. Hence this Criminal miscellaneous application.

3. The learned counsel for the applicant states that the application for registration of F.I.R. was based on same facts upon which direct complaint was filed and dismissed, and in view of provisions of section 203, Cr.P.C. the application for registration of F.I.R. was not maintainable. He then submits that Justice of Peace has not considered the facts of the case and has passed erroneous order to registration of F.I.R. and even after coming to know about the real facts has refused to correct its above mistake by dismissing the application for recalling the order dated 7-7-2007. The learned counsel for the applicant has relied upon the following reported cases:-- (1) Habibullah v. Political Assistant, Dera Ghazi Khan and others (2005 SCMR 951) (2) Syed Sakhawat Hussain Shah v. S.H.O. Police Station Kalar Syedan Rawalpindi (2005 PCr.LJ 607).

4. The learned counsel for private respondents states that the learned Justice of Peace has rightly exercised jurisdiction vested under it and no enquiry is necessary before passing order for registration of F.I.R. He then submits that the application under sections 22-A and 22-B, Cr.P.C. was filed for another offence committed by the applicant and others. He then 'submits that the Justice of Peace is bound to direct registration of F.I.R.

5. Mr. Mumtaz Alam Leghari, learned Assistant A.-G. submits that from the perusal of record it appears that after dismissal of private complaint the application for registration of F.I.R. was filed on same facts with unexplained delay and the same appears to be after-thought.'

6. I have heard the learned counsel for the parties and perused the record.

7. The respondent No.2 has filed direct complaint against seven persons pleading three incidents of 2-12-2005, 3-12-2005 and 2-1-2006. In para-7 of the application it was alleged that on 2-1-2006 at about 6-30 a.m. the staff of union council Kunri along with others attacked her house and forced her to shift from their houses, demolished roof of the house and taken away household articles including Jehaiz articles of her daughter. The said direct complaint was dismissed on 7-7-2006. The applicant after waiting for about one year has filed application under sections 22-A and 22-B Cr.P.C. for registration of F.I.R. against same persons against whom the earlier direct complaint was filed. In the application the applicant has pleaded the incident of 13-12-2005 and 2-1-2006. In para-5 of the application the applicant has alleged that on .2-1-2006 accused persons attempted to demolish her house, demolished the roof of house, and robbed valuable articles. From the perusal of direct complaint as well as the application is apparent that the offence pleaded in the subsequent application is the same as pleaded in the earlier direct complaint which was dismissed. The mala fides of the respondent No.2 is apparent on the record for the reason that the subsequent application was filed after one year of the dismissal of direct complaint. The learned Justice of Peace has not taken note of the fact that the earlier direct complaint on same facts was dismissed and has committed an error. It is not always necessary to direct the police to register the F.I.R. if at the face of it the application appears to be mala fide. No doubt before passing the order of registration of F.I.R. no enquiry is necessary but the learned Justice of Peace has to apply its mind to form an opinion about the commission of a cognizable offence. It is not obligatory for the Justice of Peace to issue direction in every case irrespective of the facts and circumstances of each case. The filing of subsequent application for registration of F.I.R. is abuse of process of Court and cannot be allowed. Both the orders of learned Justice of Peace dated 7-7-2007 and 12-7-2007 are not legal and proper and the same are quashed.

8. The above are the reasons of the short order dated 2-3-2009, by which the Criminal Miscellaneous Application was allowed. H.B.T./M-87/K??????????????????????????????????????????????????????????????????????????????????? Application allowed.