2012 PLP 134 (YLR)

MUHAMMAD HASHIM KHAN KAKAR, J.

Through this petition, the petitioner has challenged the order dated 18th September, 2009, passed by Mr. Jan Muhammad Gohar, learned Sessions Judge, Sibi Division, Sibi/Justice of Peace, Sibi, whereby the application filed by the petitioner under section 22-A of the Cr.P.C. for registration of case against respondents Nos.1 to 3 was dismissed.

2. Mr. Bahadur Khan, learned counsel for the petitioner has submitted that respondents Nos.1 to 3 came to village Abdul Sattar on 9th June, 2009 at 5-00 p.m., while being equipped with deadly weapons, made firing at Abdul Sattar and Ali Nawaz and caused firearm injuries to Abdul Sattar on his neck, right arm and chest, who succumbed to the injuries at the spot, whereas Ali Nawaz also sustained injuries. However, the petitioner aggrieves that he timely reported the matter to respondent No.4 for registration of case against respondents Nos.1 to 3, but respondent No.4 (S.H.O.) lingered on registration of case for one reason or the other, who, eventually, refused to lodge the F.I.R. against them in violation of section 154 of the Cr.P.C. Consequently, he had no option, but to file an application under section 22-A of the Cr.P.C. before the learned Sessions Judge/Justice of Peace, Sibi, after receipt of report, the Sessions Judge proceeded to dismiss the said application vide order dated 18th September, 2009. Learned counsel for the petitioner has further submitted that no authority vested with an officer-in-charge of a police station or with anyone else to refuse to record an F.I.R., where the information conveyed, disclosed the commission of a cognizable offence. He has also submitted that the learned Sessions Judge, Sibi, was not authorized to hold any inquiry into the correctness or otherwise of the information, which is conveyed to the S.H.O., for the purpose of recording of an F.I.R. and he had also committed an illegality while dismissing the application filed by the petitioner.

3. On the other hand, Mr. Muhammad Aslam Chishti, Advocate, on behalf of respondents Nos.1 to 3, who were under notice in the present petition, submitted that impugned order was quite justified and the present petition is liable to be dismissed, as material facts were suppressed by the petitioner, because deceased Abdul Sattar and alleged injured Ali Nawaz were associated with a gang of dacoits and had never come forward during the whole episode to record their version, while, on the contrary, the petitioner, who is completely a stranger, had filed the application under section 22-A of the Cr.P.C. before the Sessions Judge after unexplained delay of about three months with mala fides, just to harass the police authorities and respondents Nos.1 to 3 on account of previous enmity. He further maintained that the petitioner was neither party to the whole episode, which culminated in the death of two persons and injuries to a number of persons, nor he was aggrieved person and as a matter of fact application under section 22-A of the Cr.P.C. had been moved malafidely just to save the remaining accused involved in a number of cases lodged against them as a result of incident in question. He lastly contended that the instant petition under section 561-A of the Cr.P.C. is not maintainable and impugned order was to be challenged/assailed through Constitutional Petition.

4. So far as the contention of Mr. Muhammad Aslam Chishti, Advocate, regarding maintainability of the petition is concerned, I am of the view that Ex-Officio Justice of Peace does not perform judicial functions, nor his directions are coming within the scope of judicial orders, but their directions are administrative and ministerial, therefore, they can be challenged under section 561-A of the Cr.P.C., because administrative orders of the Magistrates are also required to be challenged under section 561-A of the Cr.P.C. The order, being administrative or supervisory in nature, is not amenable to the revisional jurisdiction of this Court, whereas exercise of discretion under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 was not dependent only, on illegality committed by a competent authority, but was also controlled by some other important considerations, such as, the seeker of a writ being an aggrieved person; availability of alternative remedies, such as, filing of a complaint etc.

5. I am in agreement with the learned counsel for the petitioner that no authority vested or with an officer-in-charge of a police station or with Justice of Peace to hold any inquiry into the correctness or otherwise of the information, which is conveyed to the S.H.O. for the purposes of recording of an F.I.R., but the record of instant case reflects that no inquiry whatsoever in nature was conducted by the Justice of Peace after receiving an application under section 22-A of the Cr.P.C., rather, simplicitor, a report was submitted, showing the involvement of deceased Abdul Sattar and injured Ali Nawaz in a number of criminal cases lodged with police station, Sibi and facts regarding to the incident, culminated in death of deceased Abdul Sattar and one Mir Mehmood Ali, Ex-Union Council Nazim, who were chasing the culprits at the fateful day of incident.

6. There is no cavil to the proposition that if there is information, relating to the commission of a cognizable offence, it falls under section 154 of the Cr.P.C. and a police officer is under statutory obligation to enter it in the prescribed register. The condition precedent is simply two-folds; first it must be an information and secondly, it must relate to cognizable offence on the face of it and not merely in the light of subsequent events. A police officer is bound to receive a complaint, when it is preferred to him or where the commission of an offence is reported to him orally, he is bound to take down the complaint. Thus, it does not depend upon the sweet will of the Police Officer, who may or may not record it. It is settled principle of law that the only jurisdiction, which could be exercised by an Ex-Officio Justice of the Peace under section 22-A(6) of the Cr.P.C., was to examine whether the information disclosed by the applicant did or did not constitute a cognizable offence and if it did then to direct the concerned S.H.O to record an F.I.R. without going into the veracity of the information in question, but the record of the instant case is indicative of the fact that one Mukhtiar Ahmed on 9th June, 2009 filed an application to S.H.O. with the averments that he, along with his relative Bashir Ahmed, was proceeding on his motorcycle to his village Pahorr Bagh city, when at about 5-15 p.m., near Peer Tiyar Ghazi, three persons, with muffled faces, while being equipped with Kalashnikovs, forcibly intercepted their motorcycle and deprived him of his mobile phone and cash amount of Rs.8,000, who are now being followed by police party and their relatives, however, culprits also called on telephone their relatives for help and in the meantime their accomplices Imdad, Fateh Muhammad, Abdul Sattar, Abdul Hameed, Muhammad Anwar, Takri Muhammad Hassan and Ghulam Mustafa also reached on motorcycle, while being equipped with Kalashnikov, made firing at police party and their helpers and Jalal Khan, Nazim, UC, Mir Mehboob Ali, Mir Saleem Khan and Abdul Majeed, suffered firearm injuries in exchange of firing, resultantly, Mir Mehboob Ali succumbed to the injuries at the spot and culprits made their escape good, but the police party, after following the culprits made firing upon them, resulting in death of one culprit Abdul Sattar, while rest of the culprits Qazi, Ali Khan, Ehsan Khan, Safeer Khan, Naseer and Ali Nawaz were arrested along with recovery of Kalashnikovs and stolen motorcycle and criminal cases vide Crime Nos.35 to 39 were registered against the arrested accused persons, which cases are pending before the Court of law for trial.

7. I am mindful of the fact that under Article 199 of the Constitution and section 561-A of the Cr.P.C, High Court is empowered to review or set aside order passed under section 22-A of the Cr.P.C, but such powers could only be exercised, if lower Court has not applied its judicial mind or has overlooked some material aspects of the case. When the lower Court has passed a well-reasoned order, keeping in view the fact and circumstances of the case, then no interference is required by the High Court. In the instant matter, neither the legal heirs of Abdul Sattar, nor the injured Ali Nawaz came forward to record their version, while, on the contrary, the petitioner instituted an application under section 22-A of the Cr.P.C. after unexplained delay of about three months, that too, while suppressing the facts regarding the death of Mehboob Ali and injuries to a number of people, who were chasing the dacoits. From the peculiar circumstances of the case, it can safely be inferred that the application was instituted by the petitioner so as to save the skin of arrested culprits from clutches of law, pressurizing the respondents Nos.1 to 3, being heads of opponent tribe and to frustrate the registration of murder case against his relatives for commission of death of Mir Mehboob Ali and attempt to commit murder of Mir Saleem Khan and Abdul Majeed. The respondents Nos.1 to 3 never pictured at any stage or incident, which took place between the police party and dacoits. The recovery of crime weapons, registration of cases and recovery of stolen motorcycle from the possession of deceased Abdul Sattar and his companions, are the facts, which negate the version of petitioner. For what has been discussed hereinabove, while finding no substance in the instant petition, the same is dismissed. H.B.T./87/Q Petition dismissed.