The learned counsel for the petitioner has called in question order of the learned Addl. Sessions Judge/Ex-officio Justice of the Peace, Sargodha, dated 25.8.2007, whereby he ordered for registration of case against the petitioner. The learned counsel contends that the impugned order is also incompatible with decision of a Full Bench judgment of this Court reported in PLD 2005 Lahore 470, Khizar Hayat vs. IPG.
2. An application under Section 22-A(6), Cr.P.C. was filed by Respondent No, 3 against SHO Police Station Gantt., Sargodha, present petitioner, Ind two others for registration of an FIR against them. In the said application, Respondent No, 3 alleged that on 23.6.2007 he was present with his family members at his residence, where present petitioner arrived in a white car alongwith two police constables and two unknown persons. They illegally and forcefully entered into house of the Respondent No, 3 and threatened him to arrest in a fake dacoity case. It was further alleged in the application that the petitioner acted at the instigation of Respondent No,
4. The learned Addl.
Sessions Judge, called a report from the SHO. According to the report, the allegations leveled by Respondent No, 3 against the petitioner and other accused were found false. The report further noted that a case FIR No, 244/07, dated 26.6.2007, under Section 392 PPC stood registered at the instance of Respondent No, 4 against Respondent No, 3, hence the application before the learned Addl. Sessions Judge/Ex-officio Justice of the Peace was filed to harass the petitioner and other police officials.
3. Despite above mentioned report from the SHO, the learned Addl. Sessions Judge/Ex-officio Justice of the Peace passed the following order:- From the contents of petition, it is evident that the respondent as an ASI acted beyond his authority.
In these circumstances, the SHO concerned is directed to lodge FIR and to proceed under the law.''
4. According to the learned counsel for the petitioner, the impugned order has been passed despite report of the SHO which had not supported the allegations against the petitioner, etc. According to him, impugned order is violative of Khizar Hayat case.
5. In Khizar Hayat vs. IPG, PLD 2005 Lahore 470, it was held that the officer in charge of the relevant police station may be under a statutory obligation to register an FIR whenever an information disclosing commission of cognizable offence is provided to him but the provisions of Section 22- A(6) Cr.P.C. do not make it obligatory for an ex officio Justice of the Peace to necessarily or blindfoldedly issue a direction regarding registration of a criminal case whenever a complaint is filed before him in that regard. The use of the word "may' in Section 22-A(6), Cr.P.C. clearly shows that the jurisdiction of an ex-officio Justice of the Peace in that regard is discretionary in nature, and understandable so. It was further held in the same judgment that there is a pressing need on the part of the ex-officio Justice of the Peace to exercise caution and restrain before issuing a direction regarding registration of a criminal case. According to the learned Court, it is prudent and advisable for 'an ex-officio Justice of the Peace to call for comments of the officer in charge of the relevant police station in respect of complaint of this nature before taking any decision of his own in that regard so that he may be apprised of the reasons why the local police have not registered a criminal case in respect of the complainant's allegations. In addition to the above, it was further held as under:- "If however, the comments furnished by the officer in charge of the relevant police station disclosed no justifiable reason for not registering a criminal case on the basis of the information supplied by the complaining person than an ex-officio Justice of the Peace would be entirely justified in issuing a direction that a criminal case be registered and investigated."
It was further held that in appropriate cases, an ex-officio Justice of the Peace may refuse to issue direction regarding registration of a criminal case and may dismiss the complaint under Section 22-A(6), Cr.P.C, reminding the complainant person of alternate statutory remedies.
6. As mentioned above, the above mentioned judgment allows ex-officio Justice of Peace not to agree with the report/comments furnished by the officer in charge of the police station and may pass an order contrary to the report/comments offered by the SHO. Therefore, if in the present case, the learned ex-officio Justice of the Peace has passed impugned order disregarding report/comments of the SHO, the same cannot be held in 'conflict with Khizar Hayat vs. IGP, PLD 2005 Lahore 470.
7. A new development has taken place which was not in knowledge of the learned counsel for the petitioner. The Hon'ble Supreme Court has very recently disagreed with the above view of the learned High Court. According to the recent view of the Hon'ble Supreme Court, if a complaint discloses commission of a cognizable offence, the ex-officio Justice of the Peace is bound to direct officer incharge of the police station to register a case. According to the judgment, neither the ex- officio Justice of the Peace nor the SHO is required to hold any inquiry into correctness or otherwise of the information which is conveyed to the ex-officio Justice of the Peace, etc. According to the Hon'ble Supreme Court, the check against lodging of false FIRs is not refusal to record such FIRs but punishment of such informants under Section 182 PPC. The Hon'ble Supreme Court held as under: "Therefore, in our opinion the only jurisdiction which could be exercised by an ex-officio Justice of the Peace under Section 22A (6), 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 SHO to. record an FIR, without going into veracity of the information in question, and no more.
Offering any other interpretation to the provisions in question would be deemed violence to the entire scheme of the Cr.P.C. which could not be permitted". (Muhammad Bashir us, Station House Officer), PLD 2007 SC 539).
8. The view of the Hon'ble Supreme Court mentioned in the proceeding para is different than the view of the Full Bench of this Court, as stated above, which is binding on this Court in view of provisions of Article 190 of the Constitution. I have already pointed out that even the Full Bench judgment of this Court did not forbid the ex-officio Justice of the Peace to pass an order contrary to the report/comments furnished by the SHO. In addition to that, the recent judgment of the Hon'ble Supreme Court has left no doubt that if a complaint/application is filed before the ex- officio Justice of the Peace or S.H.O. disclosing commission of a cognizable offence, they have no other option except to order registration of an FIR. However, it may be clarified that merely registration of a case does not necessarily make the nominated person in the FIR guilty. The SHO and I.O. are required to treat the nominated persons in the FIR strictly in accordance with law.
Guidance in this regard is provided in the Cr.P.C., Police Rules, 1934 and Police Order, 2002. As elaborated lucidly in the above referred judgments of the Hon'ble Supreme Court and this Court, registration of case does not require arrest or immediate arrest straightaway in every case unless the I.O. is satisfied that the same is required in the interest of justice and on the basis of material collected by him against the named person in the FIR. Nevertheless, it may be stressed that despite above, jurisdiction of the ex-officio Justice of the Peace under Section 22-A(6), Cr.P.C. is not at par with Constitutional jurisdiction of High Court under Article 199 of the Constitution. Therefore, the above dicta of ordering registration of an FIR if a complaint discloses commission of a cognizable offence, is not applicable to the High Court. To make it absolutely clear, the relevant portion from the above mentioned Supreme Court judgment is reproduced as below:- "We are conscious of the fact that in pursuance of petitions filed under Article 199 of the Constitution, the High Courts at times, did refuse to issue writs directing recording of F.I.Rs, Suffice it so say that the exercise of discretion under .the said jurisdiction was not dependent only on an illegality committed by a competent authority but was also controlled by some other important consideration such as the seeker of a writ being an aggrieved person; availability of alternative remedies such as filing of a complaint etc. in criminal matters and the applicant being qualified, in equity, for the grant of the sought relief. The powers of the Ex-officio Justice of the Peace under Section 22-A (6) of the Cr.P.C. could, therefore, not be equated with the Constitutional jurisdiction vesting in a High Court."
9. In view of the foregoing discussion and reasons, this writ petition is dismissed. The order of the learned Addl. Sessions Judge/exofficio Justice of the Peace, Sargodha is upheld.