2024 P Cr (PLP)

FAZAL SUBHAN, J.

Through instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution) read with section 561-A Cr.P.C, the petitioners have challenged the order dated 11.7.2023, passed by the learned Additional Sessions Judge-I/Ex-officio Justice of Peace, Karak, whereby petition under section 22-A Cr.P.C, filed by the respondent No.1 was accepted and the SHO PS Karak/respondent No.4 was directed to lodge a formal FIR as per allegations of the petitioner (respondent No.1).

2. Epigrammatic facts of the instant petition are that respondent No.1 lodge report to Habib Ullah IHC, In-charge Casualty DHQ Hospital, Karak regarding unnatural death of Mst. Satma Bibi wife of Wajid Usman, which was reduced into writing in shape of Naqal Mad No.15 dated 20.4.2023 and an inquiry under section 174 Cr.P.C was initiated. During the course of inquiry post mortem report of the deceased was collected, statements of witnesses were recorded and on completion of inquiry, final report dated 22.5.2023 was submitted. After submission of case to the District Public Prosecutor for his opinion, he forwarded the final report and whole record of the inquiry conducted under section 174 Cr.P.C to the court/ Illaqa Judicial Magistrate for final order. On 08.6.2023, the respondent No.1 filed petition under section 22-A Cr.P.C before the court of learned Additional Sessions Judge-I/Ex-Officio Justice of Peace, Karak for issuance of direction to the SHO PS Karak for registration of criminal case against the petitioners. The learned Ex-officio Justice of Peace vide order dated 11.7.2023, accepted the application with the direction to the SHO PS Karak/ respondent No.4 to lodge a formal FIR as per allegations of the petitioner (respondent No.1) in accordance with law. Being aggrieved from the order dated 11.7.2023, the petitioners approached this court through instant constitutional petition.

3. After hearing arguments of learned counsel for petitioner learned counsel for respondent No.1 and learned AAG for official respondents, the record depicts that Mst. Satma Bibi daughter of the respondent No.1 was married to the petitioner No.1. On 20.4.2023, the respondent received information from his nephew Sajjad Hussain (petitioner No.2) that his daughter has committed suicide and her dead body was taken to the KDA Hospital Karak, whereafter he visited the said Hospital. The incident was entered in Mad No.15 dated 20.4.2023 and an inquiry into the incident was initiated. The respondent No.1 being not satisfied with the inquiry proceedings, filed application under section 22-A Cr.P.C before the Ex-officio Justice of Peace, which was allowed vide impugned order dated 11.7.2023 and the SHO concerned was directed to register an FIR against the petitioners.

4. We have considered the available record and we are of the view that on the basis of Mad No.15 dated 20.4.2023, the local police initiated inquiry under section 174 Cr.P.C to inquire about the death/suicide of the deceased. The purpose of such inquiry is always meant to collect evidence in respect of the unnatural death of deceased, to unearth the actual circumstances which led to the cause of death and also to avoid nomination of innocent persons. In case titled "Muhammad Tufail v. Additional Sessions Judge" (2010 MLD 5 Lahore), it is held that.

5. The scope and intent of section 176, Cr.P.C. is to discover the actual cause of death of a deceased person. Subsection (1) of section 176, Cr.P.C. makes a provision for conducting an inquiry into the cause of death either instead of or in addition to the investigation held by the police if the case is covered by subsection (1) of section 174, Cr.P.C. Even the registration of an FIR is not an impediment for holding an inquiry into the cause of death of deceased person under section 176, Cr.P.C. In the wake of a specific allegation and apprehension of unnatural death of the deceased, brother of the respondent No.2, the requirements of section 174 read with section 176, Cr.P.C. could not be ignored or kept aside by deriving certain conclusions regarding the interests, whether bona fide or mala fide, of the parties. The only thing that had to be considered by the learned Judicial Magistrate was whether the death had taken place under the circumstances raising a reasonable suspicion that some other person had committed an offence, which in the light of the statement of the respondent No.2 could not be brushed aside. The learned Additional Sessions Judge, was, therefore, justified to interfere with the findings and order of the learned Judicial Magistrate and directing the learned Judicial Magistrate to manage the disinterment of the body of the deceased for the purpose of ascertainment of cause of death."

5. Record shows that local police, in view of the medical report and collecting evidence during inquiry, has already submitted its report to the Illaqa Judicial Magistrate. On the other hand, the learned Ex-Officio Justice of peace on the application of respondent No.1 has passed the impugned order for registration of FIR merely on the assertion of respondent No.1, without seeking any report from the local police or summoning record of the inquiry being conducted on the basis of Mad No.15. It is well settled that Justice of Peace has to apply its mind to the assertions made in the application and examine all facts and circumstances, before passing order for the registration of case, instead of passing an order in mechanical manner. In the case of "Haji Ashrat and 2 others v. Khan Muhammad and 3 others" (2020 YLR 44), it is held that:

8. In our opinion, a Justice of Peace acting in exercise of Section 22-A, Cr.P.C, is not supposed to proceed and act mechanically by simply considering the version of events narrated by a party applying for registration, but instead, in order to safeguard against misuse or abuse of such process, must apply his mind and satisfy himself that, prima-facie, there is some material available on the record to support such version.

6. For the aforesaid reasons, this writ petition is allowed and the impugned order for registration of FIR is set aside. JK/3/P-24 Petition allowed.