2017 P Cr (PLP)

QALANDAR ALI KHAN, J.

Muhammad Iqbal, Advocate, and five other petitioners, have invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, for issuance of a declaration to the effect that the order of learned Additional Sessions Judge-II/Ex-officio Justice of Peace, Haripur, for registration of case against the petitioners was illegal, unlawful, without jurisdiction and to also cancel if any FIR was registered on the basis of the said impugned order.

2. The instant writ petition has been lodged in the wake of application of Muhammad Younas alias Jiyala, respondent No.4, against the petitioners under section 22-A, Cr.P.C. for issuance of direction by the learned Ex-officio Justice of Peace to the SHO PS Saddar, Haripur, for registration of case against the petitioners, wherein, it was alleged by the respondent that the inhabitants of Mohallah Qasabdaran of Sarai Saleh, Haripur, had rented out a shop of Siddique Akbar Mosque to him on payment of monthly rent of Rs.2,000/- on 03.12.2010. The shop was lying vacant since long and after securing the shop on rent he made fittings and other necessary arrangements for running a vegetable and fruit shop but the petitioners moved application to the local police of Police Station Saddar, Haripur, against him on 07.12.2010, due to political rivalry, whereupon he was summoned by the police to the Police Station on 09.12.2010. He visited the police post Sarai Saleh along with residents of the Mohallah and 10/12 such persons recorded their statements in favour of the respondent thereby supporting his stance of securing the shop on rent with the commitment that whenever the shop was required to the Mosque, the same would be got vacated by them. The respondent also agreed not only to regularly pay the monthly rent to the Mosque but also to vacate the shop whenever required. In his application under section 22-A, Cr.P.C., the respondent questioned the constitution of self-styled Mosque Committee by the petitioners. He claimed that on 31.12.2010 he purchased fruits/vegetables worth Rs.142,700/- for opening the shop, but Incharge Police Post Sarai Saleh visited the shop along with other police officials and sealed the shop and when he went to the shop on 01.01.2011, he found the wall on the back side of the shop being demolished and in the meantime he was also arrested by the local police which reached there, and was implicated in case vide FIR No.582 dated 30.12.2010 under section 448, P.P.C. He was, however, released on bail on 02.01.2011 and when returned to his shop the wall on the back side of the shop had already been demolished, the shed removed and the fruit and vegetables along with other articles lying in the shop worth Rs.150,000/- missing. He, therefore, charged the petitioners for the commission of the offences.

3. In its report, the local police totally denied the occurrence and termed the same result of criminal case registered against respondent No.4 for forcible and illegal occupation of the shop belonging to Siddique Akbar Mosque by breaking open the lock of members of the Mosque Committee. The local police refuted the allegations of the respondent that he either obtained the shop on rent from members of the Mosque Committee or prior permission of any of authorized person(s). The application/complaint of the respondent was, according to the local police, only aimed at wasting precious time of the petitioners and the Court. According to the police, the respondent was in the habit of creating trouble and mischief in the area.

4. However, the application was accepted and the learned Ex-officio Justice of Peace/Additional Sessions Judge-II, Haripur, while arriving at the conclusion that the local police was bound to register the case in view of the allegations of the respondent/petitioner as contents of the application constituted cognizable offences, directed SHO Police Station Saddar to lodge a formal FIR according to the allegations of the petitioner in accordance with law, vide order dated 08.02.2011, which is impugned herein.

5. Arguments of learned counsel for the petitioners, learned Additional Advocate General and learned counsel for respondent No.4 heard, and record perused.

6. There can be no cavil with this proposition that an officer-in-charge of a police station is under obligation under section 154, Cr.P.C. to register FIR on the receipt of information relating to commission of a cognizable offence, followed by investigation without order of Magistrate under section 156, Cr.P.C. In other words, investigation follows registration of FIR under section 154, Cr.P.C., rather than inquiry preceding registration of FIR, as there is no legal provision providing for pre-registration of FIR inquiry proceedings by the local police.

7. Admittedly allegations of theft and destruction of valuable property constituted commission of cognizable offences, calling for registration of the FIR by the officer-in-charge of the police station under section 154, Cr.P.C.; and in case of failure on the part of the local police to perform its duty enjoined upon it by the law, section 22-A(6)(i), Cr.P.C. empowered the Ex-officio Justice of the Peace to issue appropriate directions to the police authorities concerned on the complaint regarding non-registration of criminal case. Therefore, while exercising powers vested in the learned Ex-officio Justice of Peace/Additional Sessions Judge-II, Haripur, he directed the SHO Police Station Saddar to lodge a formal FIR according to the allegations of the petitioner/respondent No.4 in accordance with the law, vide impugned order dated 08.02.2011; which is not open to exception on the touchstone of legal provisions empowering an Ex-officio Justice of Peace in this behalf, and referred to above.

8. As regards facts of the case, as alleged by the petitioners in their writ petition and also divulged in the comments/report of the local police furnished to the learned Ex-officio Justice of Peace in the case, suffice it to say that neither resolution of factual controversies fall within the domain of writ petition nor order of the learned Ex-officio Justice of the Peace can be set aside on the basis of counter allegations or comments/report of the local police or even on the basis of allegations that the lodger of the report was enjoying the unsavoury reputation of moving applications/complaints against everyone or involving himself in unnecessary controversies and also had the impulse of dragging others into frivolous litigation etc. (1968 SCMR 62, PLD 1997 SC 275, 2005 SCMR 37, 2006 SCMR 276, 1993 PCr.LJ 125 {Karachi}, 1995 PCr.LJ 2047 (Rawalpindi Bench) and PLD 1998 Karachi 230).

9. Needless to say that there are sufficient safeguards in the law against false implication in criminal cases with ulterior motive. After all, following registration of the case, investigation in the case is to be conducted by the local police, including collection of evidence either proving or disproving the case by the respondent against the petitioners. After collection of evidence, if the report is proved false and baseless, the police have ample powers to get the FIR cancelled and proceed against lodger of the FIR/complainant under the law for lodging a false and concocted report for the harassment of petitioners.

10. As an additional safeguard, while keeping in view peculiar circumstances of the case in the light of material already collected by the police, a direction is issued to the local police not to arrest the petitioners, which is even otherwise not an essential pre-requisite for a fair and proper investigation, until and unless sufficient evidence is collected during investigation warranting arrest of the petitioners as accused in the case. In case the evidence collected during investigation proves otherwise, the local police must exercise its power of proceeding against the respondent for lodging a false and baseless report.

11. The writ petition is, accordingly, disposed of in the above terms. JK/209/P Order accordingly.