2013 P Cr (PLP)

NAIMATULLAH PHULPOTO, J.

Applicant Munawar Ali has filed present criminal miscellaneous application whereby challenged an order dated 11-10-2012 passed by learned Sessions Judge/Ex-Officio Justice of Peace, Larkana, in Criminal Miscellaneous Application No.478 of 2012, re Khalid Hussain v. SHO PS Darri and others, he allowed an application under sections 22-A and 22-B, Cr.P.C. filed by complainant and directed SHO PS Darri, Larkana to record the statement of one Khalid Hussain. If from his statement any cognizable offence was made out, the same be incorporated in 154, Cr.P.C. book.

2. The facts in nutshell are that complainant Khalid Hussain Shaikh filed an application under sections 22-A, 22-B, Cr.P.C., before trial Court stating therein that on 2-10-2012 his house was under construction. He along with his friends, namely, Shahzad, Hussain Ali and mason Manzoor Ali were present. It is alleged that at about 7-00 p.m., proposed accused, namely, Munawar Ali, Barkat Ali, Akbar and police personnel Muhammad Ali Unar and two unidentified persons came there and asked complainant as to why he was constructing the house; complainant replied that it was his property, proposed accused had no right to restrain him. It is stated that proposed accused became annoyed, Akbar Ali instigated others not to spare the complainant and caused him knife blow at his cheek and at his instigation other proposed accused took out their pistols and caused fists and kicks and pistol butt blows to complainant and issued threats of the murder. It is further stated that bathroom and kitchen of the complainant were demolished. Complainant raised cries, upon which neighbourers were attracted, proposed accused abducted away mason Manzoor Kalhoro. After the incident, complainant went to the police station for lodging the report but SHO refused. Manzoor was released by the proposed accused on 3-10-2012. Complainant finding no other way, filed an application under sections 22-A, 22-B, Cr.P.C. before learned Sessions Judge, Larkana. The same was disposed of by him vide orders dated 11-10-2012.

3. Mr. Shamsuddin Abbasi, learned advocate for applicant/ proposed accused contended that according to report of the police no incident had taken place and learned Sessions Judge/Ex-Officio Justice of Peace has passed the order in the mechanical manner without assigning the reasons. It is further contended that complainant Khalid Hussain was encroaching upon the common street by raising the construction of bathroom and kitchen. An application was submitted by the proposed accused Munawar Ali Shaikh (present applicant) to the Administrative Officer, Metropolitan Corporation, Larkana on 24-9-2012 regarding such encroachment, which caused annoyance to the complainant and he filed an application under sections 22-A and 22-B, Cr.P.C. It is also argued that both parties are next-door neighbourers and relatives and dispute arose between the parties when complainant Khalid Hussain encroached upon the public street. Learned advocate for the applicant/proposed accused has also produced copy of Harassment Application filed by complainant Khalid Hussain against Munawar Ali and others, to show that application filed before learned Sessions Judge was tainted with malice. In support of the contentions he relied upon the cases reported as Dost Muhammad v. The State, 2011 PCr.LJ 1563, Imtiaz Ahmad Cheema v. S.H.O Police Station Dharki, 2010 YLR 189, Rai Ashraf v. Muhammad Saleem Bhatti, PLD 2010 SC 691 and Ghulam Sarwar v. SHO PS Veehar 2012 YLR 2775.

4. Mr. Naimatullah Bhurgri, learned State Counsel, did not support the impugned order passed by learned Sessions Judge/Ex-Officio Justice of Peace on the ground that as per report of the SHO no such incident had taken place. There is dispute between the parties over the public street. He submitted that complainant Khalid Hussain may approach the civil Court for seeking declaration regarding his title in the disputed piece of plot.

5. Mr. Mubashir Ali Solangi, advocate for complainant Khalid Hussain, argued that complainant was constructing bathroom on his property, cognizable offence has been committed by the proposed accused. SHO had refused to register the F.I.R, as the proposed accused and police personnel are the influential persons. He submitted that SHO has been rightly directed to register the F.I.R of the complainant. He has submitted that application is meritless.

6. I have carefully heard the learned Counsel for the parties and perused the case-law.

7. Learned Sessions Judge/Ex-Officio Justice of Peace, Larkana disposed of an application under sections 22-A, 22-B, Cr.P.C. while observing as under:-- "After filing of application notices were issued to the respondents and report was called from them. Today, the report was submitted by respondent No.1 in which he denied the allegation of applicant and submitted that the applicant and proposed accused are neighbours and no such incident had taken place but in order to pressurize the other party instant application for lodging of F.I.R. has been lodged and that the applicant has never approached them in the above said matter and if he will appear and disclose the facts of cognizable offence his F.I.R. would be registered. However, without going into such controversy, the applicant is advised to appear at the concerned Police Station where the SHO or the incharge duty officer shall take his statement and if from the said statement any cognizable offence was made out, the same shall be incorporated in 154, Cr.P.C. book and further dealt-with in accordance with law. Application disposed off accordingly."

8. Under the law only jurisdiction which can be exercised by Sessions Judge/Ex-Officio Justice of Peace is to examine whether information disclosed by applicant did or did not constitute a cognizable offence and if it did then to direct the SHO to record an F.I.R. in 154, Cr.P.C. book, but in the present case, such exercise was not completed by the learned Sessions Judge. Simply it is stated in order that applicant is advised to approach concerned SHO, who shall record his statement if cognizable offence is made out. Learned Sessions Judge was not supposed to delegate his authority to SHO in such casual manner. Learned Sessions Judge had to form an opinion about the offence being cognizable or non-cognizable from the facts narrated to him. It is brought on the record that before approaching of the complainant to the learned Sessions Judge, an application was moved by proposed accused to the Administrative Officer, Metropolitan Corporation, Larkana, disclosing therein that complainant has encroached upon the common street and raised bathroom. After filing of an application under section 22-A, Cr.P.C. before learned Sessions Judge another harassment application by the same complainant was filed against the proposed accused and others. It reflects that filing of an application by complainant for seeking direction for F.I.R. before learned Sessions Judge was tainted with malice. Tendency of filing applications under sections 22-A and 22-B, Cr.P.C. for seeking relief of registration of the F.I.R. is rampant, learned Sessions Judge should have applied mind as to whether the applicant/complainant has approached the Court with clean hands or it was tainted with malice. Law has to be interpreted in a manner that its protection extends to everyone. Moreover, each and every case is to be decided on its own peculiar facts and circumstances. In this case, both parties are next-door neighbours and relatives. This aspect of case was also not considered by learned Sessions Judge. Moreover, it could not be expected from concerned SHO to perform his statutory duty lodging F.I.R. impartially. Under the law, civil disputes can only be adjudicated by the competent civil Courts and same cannot be converted into criminal case.

9. For my above-stated reasons, while respectfully relying upon the above-cited authorities, I am of the considered view that directions given to SHO by learned Sessions Judge/Ex-Officio Justice of Peace in peculiar circumstances of this case were in excess of jurisdiction conferred upon him under the law. Hence, order dated 11-10-2012 is set aside. However, complainant Khalid Hussain Shaikh would be at liberty to avail other legal remedy available to him under the law. With the above observations, Criminal Miscellaneous Application is allowed. MWA/M-183/K Application allowed.