2018 PLP 318 (YLR)

KHADIM HUSSAIN TUNIO, J.

Through captioned constitution petition, the petitioner has challenged vires of order dated 16.09.2016, passed by the learned Ex: Officio Justice of Peace/2nd Additional Sessions Judge, Hyderabad thereby allowing an application of respondent No.2, moved under sections 22-A and 22-B(6), Cr.P.C, with direction to SHO PS Qasimabad (the respondent No.1) to record statement of respondent No.2 and to lodge FIR, if cognizable offence is made.

2. Mr. Amjad Ali, Sahto, learned counsel for petitioner submitted that the impugned order, passed by the learned Ex: Officio, Justice of Peace, is against the law and norms of natural justice; that FIR No.117/2016 lodged by SIP Ghulam Hussain at P.S. Hussainabad against ASI Muhammad Malook under section 9(c) CNS Act, by citing ASI Farman Ali Abro as witness of recovery: that the respondent No.3 passed the impugned order and did not consider the fact of registration of FIR No.117/2016; that respondent No.2/ applicant is supporting to his uncle ASI Muhammad Malook who is involved in the criminal cases after reinstatement of his service; that the respondent No.2/applicant has not disclosed the name of SHO Hussainabad Mir Imdad Ali with mala fide and ulterior motives but implicated the petitioner and other officials who did not allow them for committing any offence. He also submitted that Hon'ble apex Court has been pleased and hold in case of Yousif and others v. Additional Sessions Judge, Chakwal and others that order passed by the Ex: Officio, Justice of Peace is of quasi judicial in nature hence before issuing direction for registration of criminal case under section 22A-B, Cr.P.C., the Ex-Officio Justice of Peace must satisfy itself that sufficient material is brought on the record such as application to the Station House Officer of the concerned Police Station for registration of the case; refusal or reluctance then applicant has to approach high police officials before approaching the Ex: Officio, Justice of Peace; that the impugned order is passed on conjectures, surmises and assumptions, suppositions and presumptions.

3. Conversely, Syed Zulfiquar Ali Shah advocate for respondent No.2 submitted that from the contents of the application, moved by the respondent No.2, a cognizable offence is made out as police official booked uncle of the petitioner in the case of Narcotics, who is ASI in Sindh Police and Ex: Officio, Justice of Peace has rightly passed the impugned order in accordance with law; that police officials got lodged FIR No.117/2016 under section 9(c) CNS Act at PS Hussainabad by one SIP Ghulam Muhammad Leghari on 06.09.2016 but actual real facts are not disclosed therein.

4. Heard arguments and perused the record.

5. There are many precedents / instances regarding misuse of provisions of section 22-A-B, Cr.P.C. and, thus, it is basic duty of the Court that such misuse be taken care and of such application should not be lightly entertained and decided in a mechanical manner for issuing directions to police to lodge FIR; conduct investigation and prosecuting the alleged accused. We are fortified in our view that the principle laid down in case of Imtiaz Ahmed Cheema v. SHO PS Dharki, Ghotki (2010 YLR 189) wherein it has been observed that; "The provisions of section 22-A, Cr.P.C. have been misused in a number of cases. The wisdom of legislature was not that any person who in discharging of duties takes an action against the accused would be subjected to harassment by invoking provision of section 22-A, Cr.P.C. The Courts in mechanical manner should not allow application under section 22A and B and should apply its mind as to whether the applicant has approached the Court with clean hands or it is tainted with malice. Unless such practice is discharged, it would have far-reaching effect on the police officials who in discharge of duties take actions against them. The law has to be interpreted in a manner that its protection extends to everyone. I am therefore, of the opinion that order of the Sessions Judge was passed in mechanical manner and the applicant approaching the Sessions Judge. As per the record reflects that it was tainted with malice."

6. The learned single bench of this Court has taken similar view while placing reliance on aforesaid decision/verdict in case of 'Jamil Ahmed Butt and another v. The State through Prosecutor-General, Sindh and 2 others' (2014 PCr.LJ 1093).

7. The above seems to be the back-ground which necessitated Apex Court in chalking out criterion to entertain such an application. The operative part of the case of Younus Abbas (PLD 2016 SC 581), being relevant, is referred hereunder: "11. ...The functions, the Ex-Officio Justice of Peace performs, are not executive, administrative or ministerial inasmuch as he does not carry out, manage or deal with things mechanically. His functions as described in Clauses (i), (ii) and (iii) of subsection (6) of section 22-A, Cr.P.C., are quasi-judicial as he entertains applications, examines the record, hears the parties, passes orders and issues directions with due application of mind. Every lis before him demands discretion and judgment." (emphasis supplied) Now, it should not be confusing anymore that while entertaining an application under section 22-A(6)(iii) of the Code, the Ex-Officio Justice of Peace shall not mechanically issue directions but shall conduct such proceedings in the manner, insisted in said case. The discretion in either ways should stand well with term 'judgment'.

8. The insertion of section 22-A(6)(iii) was never meant to necessary allow every such application else the legislature would not have used word 'may' in subsection (6) which (word may) always speaks of 'discretion' by application of mind. Thus, it is settled law that the Ex: Officio, Justice of Peace may refuse to issue direction regarding registration of case and may competently dismiss application under section 22-A(6), Cr.P.C., reminding the complaining person of his alternative statutory remedies under section 156(3), Cr.P.C. and 190, Cr.P.C., as well as he has remedy to file criminal/private complaint under section 200, Cr.P.C. So also there are cases where complainant party may be in better position in pressing its allegations by filing criminal complaint, rather than forcing the police to register the criminal case and to investigate when the police itself was not convinced of the complainant party's allegations being correct. In this respect reliance may be placed upon cases of 'Khizar Hayat and others v. Inspector General of Police (Punjab) Lahore and others' reported in (PLD 2005 Lahore 470) and 'Habibullah v. Political Assistant Dera Ghazi Khan and others' (2005 SCMR 951).

9. The Honourable Supreme Court has been pleased to observe in case of 'Rai Ashraf and others v. Muhammad Saleem Bhatti and others' (PLD 2010 Supreme Court 691) that; it is a settled law that each and every case is to be decided on its own peculiar facts and circumstances as law laid down in case of 'Muhammad Saleem' (1994 SCMR 2213) and 'Mushtaq Ahmed' (PLD 1973 SC 418).

10. We have gone through the impugned order as well as record appended with the petition and found that impugned order is not speaking one and based on surmises and conjectures and it requires interference of this Court in exercise of constitutional jurisdiction, therefore, the constitution petition is allowed. Impugned order is set aside and petition under sections 22-A and 22-B(6), Cr.P.C. filed before Ex: Officio, Justice of Peace/2nd Additional Sessions Judge, Hyderabad is dismissed with no order as to costs. Above are the reasons of our short order dated 21.12.2016. MH/A-101/Sindh Petition allowed.