1. ' KHAWAJA NAVEED AHMED, J.---Brief facts of the case are that one Imam Din son of Shamsuddin has filed Criminal Miscellaneous Application No, 803 of 2008 in the Court of District and Sessions Judge, Karachi, East stating therein that:-- "(3) That the complainant's brother Ali Gohar was graduate and Ex-provincial President, SPSF (Sindh Peoples Student Federation Shaheed Bhutto) and he had applied for the post of Mukhtiar Kar through Public Service Commission and he was some time used to reside at Karachi for the preparation of the upcoming examination of the PCS.
(4) That on 10-7-2008 at about 11-45/11-55 a.m. The complainant his brother Ali Gohar, Muhammad Usman and Abdul Khaliq were used to sit at Rohani Restaurant Opposite Journalist Society, Abul Hassan Isfahani Road, near Sohrab Goth, Karachi and were taking tea mean time one police mobile, one black Honda City, one Silver Cuore and 1/2 other cars came there from which some persons came down, out of them some were in police uniforms and some were in civil dresses mostly were armed with deadly weapons, out of them respondents Nos.2 to 10 came forward and have enquired about our names with caste and then they took my brother Ali Gohar and on our resistance respondent No,1 has asked that only for the identification of one culprit in the car accompanied him and get him free within 5/10 minutes.
(5) That all the respondents 2 to 10 along with other persons sitting in the above mentioned vehicles went up to small distance and then they stopped the vehicles at road an cordoned the area and fired so many rounds for about 5/7 minutes, when the firing stopped we went and saw that my brother was dead behind the car and one other person was also dead in the car which was accompanied with the above mentioned respondents Nos.2 to 10.
(6) That the above respondent did not allow the complainant to take the dead body of his brother and they threatened them that go away from the scene else they also kill them and they told them that for receiving of dead bodies the complainant should go to concerned P.S.
(7) That the complainant had approached to P.S. Mubena Town for recovery of dead body and lodging of F.I.R. But the police was unaware about the above mentioned incident and they also refused to lodge the F.I.R.
(8) That the complainant had known that the dead body of his brother is shifted to Jinnah Hospital where also the post-mortem was conducted and he also aware that the above mentioned respondents Nos.2 to 10 belong to P.S. Ferozeabad and they also lodged false, fabricated and concocted F.I.R. Against the brother of the complainant.
(9) That the dead body was shifted from Jinnah Hospital to Edhi Centre Sohrab Goth and the complainant along with his younger brother Nisar and many other friends also gathered at Jinnah Hospital then complainant along with them approached to P.S. Ferozeabad where from they got certificate and then they received the dead body from the Edhi Centre Sohrab Goth and they went to their native village for the funeral.
(10) That after completing the Soyam the complainant again came to Karachi for lodging of F.I.R., he again and again had approached to Police Station Mubena Town but he was kept on false hopes and lastly they refused to lodge the F.I.R. Against their police officers, hence this application for seeking the necessary remedy as available under the law for the complainant before this Honourable Court as the offence is committed within the jurisdiction of this Honourable Court."
2. ' He has prayed that:-- "In view of the above, it is very humbly prayed on behalf of the complainant named above that this Honourable Court may be pleased to direct the respondent No,1 to take strict legal action against the respondents No,2 to 10 and any other relief, which this Honourable Court may deem fit and proper."
3. ' The Court had received comments from S.H.O. Ferozeabad police station who states that:-- "Comments/Report.---In compliance of the order dated 26-7-2008 of this Court comments/report called for are respectfully submitted by the S.H.O. Ferozeabad as under:-- ' That on 10-7-2008 at 1445 hours F.I.R. No, 681 of 2008, under sections 353/324/186/34 at this Police Station was registered on the basis of statement under section 154, Cr.P.C. Of Inspector Ishaque Lashari S.I.O Ferozeabad. The statement disclosed that the along with S.I. Asif Jamil Qureshi, A.S-I's Iqbal Tanoli, Raja Masood, Imtiaz Phulpoto, PC's Muhammad Qaseem, Farrukh Shaikh, Farooq Aziz was on a mobile pick up SP-5863 patrolling in search of accused persons wanted in cases including in hand F.I.R. 674/08 under section 385/34 of P.S. Ferozabad when reached near Double Petrol Pump main Shahrah-e-Faisal saw a suspicious looking silver colour car with AFR plates, occupied by four persons proceeding towards Airport side. On signaling the speed was accelerated hence a chase started.
4. ' Looking at the police party chasing them they fired and speedily drove the car by the turning towards Stadium side and routing through Hassan Square/Nipa turned on A.H. Isphani Road of Gulshane-e-Iqbal side. While reaching near Noor Plaza at Quetta Marhaba Hotel Block 4/A, the police party intercepted them, the vehicle stopped and all four of them started firing and by rebuttal two of them received injuries and fell down and two escaped. One of the injured disclosed his name as Ghulam Nabi @ Ghulam Haider son of Rasool Bux and disclosed his injured companion as Ali Gohar Chandio son of Shamsuddin. Loaded firearms Kalashnikov and pistols were recovered from the hands of injured.
5. ' Meanwhile the injured Ali Gohar succumbed to his injuries and both were shifted to hospital through A.S-I. Iqbal Tanoli. From the search of the car number plates of Car AFW 671 and ALZ-590 were also found. Memo of Seizure of weapon was prepared and a separate case 682 of 2008 against Ghulam Nabi @ Ghulam Haider is also registered under section 13/D Arms Ordinance.
6. Accused Ghulam Nabi also succumbed to his injuries while being treated at hospital.
7. ' The case was investigated by S.I. Sajjad Ali of Investigation Branch of P.S. Ferozebad. The car and police mobile were examined by the experts confirming the bullet hit marks over it. And various victim of robberies pin pointed both the deceased to be criminals having committed armed robberies.
8. ' The vehicle so seized was also found to be snatched property from the area of P.S. Gizri F.I.R. No, 254 of 2008 under section 392/34. Complainant Tauseef Shaikh who identified both dead bodies, at Edhi Mortuary Sohrab Goth.
9. ' The recovered number plates AFW 671 and ALZ 590 were also of snatched vehicles regarding which proper cases were registered at P.S. Gizri and P.S. Mehmoodabad. The complainant of 170 of 2008 under section 392/34, P.P.C. P.S. Clifton also pinpointed the two dead bodies among the persons having snatched cash from him and so the injured witness of F.I.R. 174 of 2008 under sections 302/392/324/34, P.P.C. Of P.S. Gizri also pinpointed the dead bodies/photos of the persons having attached the vehicle of security company at Khayabanb-e(Illtgible) and looted cash Rs,1,493 million, therefore apart reasons of multiple (Illegible) was collected against the dead accused indicating the involvement of the accused person.
10. ' The encounter was certified by P.W. Wali Muhammad at Shahrah-e-Faisal while Kamran Haider and Nazim also certified the occurrence at A.H. Isphani Road.
11. ' After completing the investigation, challan against the accused, absconders namely Ghulam Mustafa @ Fauji @ Faisal and Salim @ Sarwar Mangi and both the deceased Ali Gohar, and Ghulam Nabi @ Ghulam Haider by placing in relevant columns have been produced before the Magistrate.
12. ' After going through the record learned judicial magistrate has admitted and registered the case by taking cognizable offence and has submitted it onward to Honourable Sessions Judge, East Karachi. Being the offence exclusively trialable by the Court of Sessions. Photo copy of charge sheet is enclosed for kind perusal.
13. ' It is therefore crystal clear that the contents of petition are contrary to the actual facts which are properly investigated and after entire satisfaction attracted the order of cognizance by the learned judicial magistrate and further can be clarified by the investigation officer if required."
14. ' I-Additional Sessions Judge, Karachi, East passed the following order:-- "ORDER: Heard the Advocate for the petitioner, and perused the record.
15. ' It transpired that the S.H.O. Police Station Mubina Town, Karachi, East has failed to record information furnished by the petitioner/applicant in writing, in terms of section 154, Cr . P. C .
16. ' The S.H.O. P.S. Mubina Town is therefore, directed to register the case of the applicant/petitioner against the responsible persons, if the offence is cognizable.
17. ' Being aggrieved from this order the applicant Inspector Ishaq Lashari has filed this application under section 561-A, Cr.P.C. And has stated that he had lodged F.I.R. Through his statement under section 154, Cr.P.C. Against deceased accused and others. His statement under section 154, Cr.P.C, is reproduced as under:-- "That on 10-7-2008 I, Inspector Muhammad Ishaq Lashari posted as SIO at Ferozabad along with A.S-I. Muhammad Iqbal Tanoli, A.S-I. Raja Masood, S-I.P. Asif Jameed Qureshi A.S-I. Imtiaz Hussain, P.C. Muhammad Qaseem, P.C. Nazakat Ali, PC Furrukh Shaikh, PC Farrukh Aziz in a Police Mobile official bearing No, S.P. 5863, in Crime No, 674/2008, under section 392/34, P.P.C. Were busy in patrolling for arrest of accused involved in the above noted F.I.R., while in search of the accused persons at about 11-30 hours reached at near Double Petrol Pump Main Shahra-e-Faisal, One Car Silver, Coure model and having number plat AFR-2008, in which four suspicious persons were sitting and going towards Air Port from Saddar. Therafter, Police Party signaled those persons to stop, but instead of compliance in peaceful manner the persons sitting therein started to fire on Police Party with other companions sitting therein. In retaliation, the police made firing for self- defence, and started to chase them, they through National Stadium bridge to Hasan Square went to Nipa Chowrangi Road then to Muskan Chowrangi and from there to Sohrab Goth, Abul Hasan Ispahani Road. When we reached near main gate of Noor Plaza at Quetta Marhaba Hotel block 4-A Gulshan-e-Iqbal then we tried to stop their car they while stopping there car alighted and we saw the three of them were having T.T. Pistols and one klashnikov. They again straight fired upon us in retaliation I, Inspector along with police party fired upon them for which two of them got injured and two of them made their escape good in the streets. While running in the street a pistol fell down from one of them. Due to non-association of private witnesses S-I.P. Asif Jameel Qureshi and P.C. Muhammad Kaseem were taken as witnesses and with the help of police party we apprehended the injured accused persons, one of them was seriously injured and could not talk and other injured disclosed his name as Ghulam Nabi @ Ghulam Haider son of Rasool Bux who also disclosed the name of other injured as Ali Gohar son of Shamsuddin. Accused Ghulam Nabi was having T.T. Pistol in his right hand bearing number A-4363, having two live bullets load chamber without licence. Accused Ali Gohar son of Shamsuddin was having one klashnikov in his right hand bearing number 56-1191-60302 along with three live bullets along with one in the chamber.
18. Unknown accused who threw the T.T. Pistol without number having one live bullet in magazine and one in chamber. In the meanwhile accused Ali Gohar died at the spot and injured accused along with the dead body of Ali Gohar were sent to hospital in CHIPA Ambulance through A.S-I. Iqbal Tanoli. Upon such of the recovered car we recovered one black bag, in which two number plated bearing car number AFW-671 one steel scale, steel tool pana bearing number 10, two number plates of car number ALZ 590. Two caps of accused on which CK was embossed, one cap with Nike.
19. Recovered, ammunition was seized on the spot and car was taken into custody under section 550, Cr.P.C. The case of the above accused persons falls under sections 186/353/324/34, P.P.C. And 13-D Arms Ordinance. The statement under section 154, Cr.P.C. Was sent through A.S-I. Raja Masood at Police Station for lodgment of F. I. R . "
20. ' On the basis of the above mentioned statement under section 154, Cr.P.C. S.H.O. Ferozabad had lodged the F.I.R. Mentioned above. S-I.P. Sajjad Ali had investigated the matter and had submitted report under section 173, Cr.P.C. Before the learned Magistrate against absconders and two dead accused persons. It is stated in the memo of application that during pendency of the criminal cases the brother of one the deceased accused had filed application under section 22-A, Cr.P.C.
21. Before the learned District and Sessions Court, East, Karachi, under jurisdiction of Ex-officio Justice of Peace which was transferred to the Ist Additional Sessions Judge, East Karachi. The contents of the application of the brother of deceased Ali Gohar and order of I-Additional Sessions Judge have already been reproduced above by me in this order.
22. ' I have heard learned counsel for the applicant Mr. Shaukat Hussain Zubedi and learned State counsel Haji Abdul Majeed for the State who has supported the contentions raised by the learned Advocate for the applicant. Mr. Shaukat Hussain Zubedi in his arguments has narrated the facts mentioned by me above. He has relied upon PLD 2005 Karachi-621 in which his Lordship Mr. Justice Rahmat Hussain. Jafferi (as he then was) has given detailed guideline for Ex-Officio Justice of Peace regarding use of sections 22-A and 22-B, Cr.P.C. His Lordship in the judgment mentioned the definition of Justice of Peace given in Black's Law Dictionary, in Chamber Dictionary.
23. ' While advising the Justice of Peace regarding their powers the Honourable Judge has observed as under:-- "As regards the exercise of powers under clause (2) of subsection (6) if Ex-officio JP receives complaint regarding the transfer of investigation from one police officer to another, in such case he has to satisfy himself whether it is justifiable to transfer the investigation or otherwise. For that he may hold inquiry but it should be kept in mind that inquiry should not take a longer period as the police are required to submit the challan within a period of 15 days after registration of the F.I.R.
24. As such inquiry with regard to such allegation should also be of a summary nature and be completed without loss of time. If the Ex-officio JP forms an opinion that the complaint received by him justifies the transfer of investigation then he has not been given powers to transfer the investigation from one police officer to any other police officer by himself but he has to issue a proper direction to the Superintendent of Police (Investigation) (Article 18(3) of Police Order 2002) who is competent to transfer the investigation under Article 18(6) of the Police Order, though his report forming such opinion. On receipt of such report, the S.P. (investigation) is required to give due weight to such report and then pass appropriate order as per law. No other role is required to be performed by the Ex-Officio JP because the investigation conducted by a police officer cannot be interfered with in any form or mode. Even judiciary cannot interfere with the investigation of a police officer as held in the case of Khawaja Nazir Ahmed v. The State (AIR 1945 PC-18), Shahnaz Begum v. The State (PLD 1971 SC 677) and in the case of Brig. Imtiaz v. The State (1994 SCMR 2142)."
25. ' The learned counsel has also relied upon order passed in C.P. No, D-1917 of 2006 Muhammad Yousaf v. II-Additional District Judge, Karachi and others. The relevant portion is reproduced as under:- "It has been observed while going through other orders passed by of the Justice of Peace directing the police to register the F.I.R, as cognizable offence has been committed and under particular offence. Such directions cannot be issued to the police, as it is beyond the jurisdiction of Justice of Peace to impose their opinion on the police for the simple reason that a statutory obligation and duty is cast upon the police officer to from his own independent opinion in respect of commission of cognizable offence and particulars of offence from the information received by him. The Justices of Peace are directed to refrain from passing such orders".
26. ' Another case reported in 2007 P. Cr.L.J 1384 Abid Sultan v. Additional District Judge, Vehari the Court has observed as under:- "8. The application filed by Muhammad Akram Naeem under section 22-A, Cr.P.C. Does not disclose commission of any cognizable offence which would warrant registration of a criminal case against Abid Sultan and others. In fact the matter between the parties is of civil nature as has been stated by respondent No,6 in the parawise comments submitted before the learned Justice of Peace.
27. While directing the respondent No,6 to file an application before the S.H.O. For registration of case against the petitioner in the application under section 22-A, Cr.P.C. And respondents Nos. 2 to 4 the learned Justice of Peace clearly exceeded his jurisdiction in the matter as section 22-A does not confer any jurisdiction on the Justice of Peace to direct registration of a case against the complainant/applicant and the respondents by directing a third party to file an application for the registration of a case. In the instant case the third party is none other than respondent No,6, who is also an accused in the application filed under section 22-A, Cr.P.C. Before the learned Justice of Peace."
28. ' He has also relied upon 2007 PCr.LJ 124 Muhammad Javaid Khan v. Additional Sessions Judge, Multan, Para. 2 of which is reproduced as under:-- "2. The object of section 22-A, Cr.P.C. Is only that if a grievance is voiced with regard to non- registration of F.I.R. In a cognizable offence, the Justice of Peace in terms of said section can only direct/suggest as to whether in terms of section 154, Cr.P.C. Concerned S.H.O. Has acted legally or illegally and in case he has refused to act, whether his inaction is justified, but under no B provision of law, the Justice of Peace can direct or even observe with regard to the nature of the offence, commission of the offence or addition or deletion of relevant sections as the same exclusively falls within the jurisdiction of either Investigation Officer or of the trial Court at the time of framing charge. Reliance is placed on a Full Bench judgment of this Court Khizar Hayat and others v. I.G.
29. Punjab and others PLD 2005 Lah. 470 and Sheikh Muhammad Shahzad v. Naveed Anwar Sethi and 4 others PLD 2006 Lah.
30. 460."
31. ' I am in respectful agreement with the case law cited at the bar reproduced by me in the preceding paragraphs. I have perused the. Impugned order of the learned I-Additional District & Sessions Judge, Karachi East. I have also reproduced the same in the preceding paragraphs. The operative portion of the order is in the form of the direction to register the case but direction is conditional. The learned Additional Session Judge has clearly stated that case be registered against C the responsible person, if the offence is cognizable. Learned counsel for the applicant has submitted that the police is misreading the order and is treating it as a direction to register the case. Case reported in 2007, PCr.LJ 1388 Abid Sultan v. Additional District Judge, Vehari, reproduced by him above in this order it is mentioned as under:-- "While directing the respondent No,6 to file an application before the S.H.O. For registration of case against the petitioner in the application under section 22-A, Cr.P.C. And respondents Nos.2 to 4 the learned Justice of Peace clearly exceeded his jurisdiction in the matter as section 22-A does not confer any jurisdiction on the Justice of Peace to direct registration of a case against the complainant/applicant and the respondents by directing a third party to file an application for the registration of a case. In the instant case the third party is none other than respondent No,6, who is also an accused in the application under section 22-A, Cr.P.C. Before the learned Justice of Peace".
32. The present case is an outcome of a police encounter with the wanted and notorious criminals. It is for the S.H.O. To see, whether the police party has killed the person, in discharge of its duty or it has exceeded its powers. The S.H.O. Is the right man to take decision in the light of facts and circumstances of the case. The case law discussed above clearly mentions that the Justice of Peace cannot give direction to S.H.O. To register the case. In the impugned order directions given by learned Additional Sessions Judge is conditional. The S.H.O. Has to see, whether a cognizable offence is made out or the story narrated in the application of the complainant is the defence plea for the trial. In such cases, it is advisable for the Justice of Peace not to give any direction because the same can be misinterpreted by the S.H.O. Or litigant parties.
33. ' In the circumstances of the case I set aside the impugned order and leave it open for the S.H.O. To act in accordance with law.