ORDER IMAM BUX BALOCH, J.---Heard Mr. Dareshani Ali Haider "Ada" for the applicant and Mr. Zulfiqar Ali Jatoi D.P.-G. For the State.
1. At the very outset Mr.Zulfiqar Ali Jatoi stated that respondent No.1 has stated in his statement that the applicant has not approached him for registration of her F.I.R. If she appeared and narrated the facts of cognizable offence then the matter be handled in accordance with law. He states that if applicant approaches respondent No.1 her statement is to be recorded, if any cognizable offence is made out, her statement is to be incorporated into 154, Cr.P.C. Book.
2. The learned. Counsel for the applicant contended that the learned Ex-Officio Justice of Peace has travelled beyond his jurisdiction by issuing notice to the proposed accused who were not accused before him. He has referred to sections 22-A and 22-B, Cr.P.C. Where the duties of Justice of Peace have been stated. For ready reference section 22-B, Cr.P.C. Is reproduced:-- "22-B. Duties of Justices of the Peace.---Subject to rules as may be made by the Provincial Government, every Justice of the peace for any local area shall.
(a) on receipt of information of, the occurrence of any incident involving a breach of the peace, or of the commission of any offence within such local- area, forthwith make inquiries into the matter and report in writing the result of his inquiries to the nearest Magistrate and to officer-in-charge of the -, nearest police station (b) if the offence referred to in clause (a) is a cognizable., hence, also prevents the removal of anything from, or the interference in any way with, the place of occurrence of the offence.
(c) when so required in writing by a police officer making an investigation under Chapter XIV in respect of any offence committed within such local area,--r #tbs (i) #the render all assistance to the police officer in making such investigation.
(ii) record any statement made under expectation of death by a person in respect of whom a crime is believed to have been committed.] 3. He contended that while hearing an application under section 22-A. Cr.P.C. No notice is to be given to anybody for forming an opinion. He further contended that it is the duty of Justice of Peace to form an opinion about the offence being cognizable or non-cognizable from the facts narrated to him by the complainant or in writing. He has placed reliance on the case of Mst.Bhaitan v. State and 3 others PLD 2005 Karachi 621. He further contended that there are counter version of the incident, the. F.I.R. Of the other party was registered whereas the applicant was denied of his statutory right by police even by the learned Justice of Peace. He has placed his reliance on the case of Afzal Khan v. A.S.J., Sheikhupura and 7 others 2011 YLR 963 and the case 2f Muhammad Bashir v. Station House Officer Okara Cantt. And others PLD 2007 Supreme Court 539; and contended that the applicant has his tie% if from her narration a cognizable offence is made out her information is to be incorporated 1* 154 Cr.P.C. Book.
4. I have considered the submissions of learned counsel for the parties. Admittedly when the Justice of Peace dealing with the application under sections 22-A and 22-B, Cr.P.C., the Justice of.
Peace only to examine the record produced before him, there is no need to issue notice to Police Officers or anybody if from the narrations of the applicant the commission of a cognizable offence is made out, he is empowered to direct the concerned Police Station to incorporate the narrations of the applicant in 154, Cr.P.C. Book. The single bench of this Court has held in the case of Mst.
Bhaitan (supra) as under--
(e) Criminal Procedure Code (V of 1898)--- ---Ss. 25, 22-A & 22-B---Immediate orders to be passed by the Ex-Officio Justice of the Peace--- Entire criminal justice system revolves around the basic principle that no offence should go, unchecked and no offender should go unpunished--Ex-Officio Justice of the Peace, therefore, is required to pass immediate orders on the application or complaint of non-registration of F.I.R. By adopting summary procedure on his satisfaction, firstly that cognizable offence appears to have been committed and secondly that according to the material produced before him the F.I.R. Has not been registered.
"There should no difficult with the Ex-Officio JP who is a senior judicial officer to form an opinion from the facts narrated to him by the complainant orally or in writing whether of not a cognizable offence has been made out. For that purpose he is not required to issue notice to anybody or to accused or to police officer. He has to form his on independent opinion from the facts narrated to him. It is pertinent to mention here that when such information whether oral or in writing is received by a police officer then at that time no notice is required to be given to the accused party but he immediately after hearing the oral or examining written information forms his opinion as to whether or not, a cognizable offence has been committed. When a police officer can immediately form such opinion then I fail to understand as to Why a Senior Judicial Officer cannot form' such opinion immediately, therefore there' is no need for holding any inquiry or issue notice to accused person or police officer or calling the witnesses for forming opinion as to whether or not information --received by him discloses a cognizable offence.
It is now well-settled that an Officer Incharge of Police Station is required and bound to register F.I.R.
Under section 154, Cr.P.C. He has no power to refuse to register the same if from the information a cognizable offence is made out. It is immaterial whether the information is false or correct but the condition precedent for recording the F.I.R in section 154, Cr.P.C. Book is that information must disclose an offence and that too a cognizable one. After registration of the F.I.R then the investigation starts to ascertain whether the information is true or false and who committed the offence. If the information is false then the Police Officer is empowered to register such case against the complainant under the relevant provisions of P.P.C. If the information discloses an offence which is not a cognizable by the police then also he is required and bound under section 155, Cr.P.C. To record it in a station diary and refer the information to a Magistrate. In both the cases of cognizable or non-cognizable offence. The officer Incharge of the Police Station cannot refuse to enter the information in section 154, Cr.P.C. Book or station diary of the Police Station as the case may be except on one condition only that from the information no offence at all is made out. On no other ground he can refuse to enter the information in relevant books.
As such Ex-Officio JP is not required to enter into any inquiry to ascertain whether the information which is required to be supplied to the police is true or incorrect. It has been observed by me while sitting at various Benches and examining the orders of various Ex-Officio JPs that purpose and to determine as to whether information is true or false by considering the merits and demerits of the information. Such inquiries are not warranted By law and the same shall be stopped immediately.
The second important condition for exercising such powers is that Ex-Office JP should be satisfied that F.I.R concerning cognizable offence has not been registered by the police officer. This fact can also be verified through various modes, firstly believing the statement of complainant or affidavit filed in support of such, allegation and secondly by calling comments from the concerned police officer. Before that, Ex-Officio JP should keep an important fact in view while examining such matter that the matter should not unnecessary be lingered on or delayed"
5. In the case of Mumtaz Ali
(sic) Single Bench of this Court has Observed as under:-- "The order of Justice of Peace impugned in the petition is not a proper order, in which he has touched the merits of the case without any. Plausible justification acted in excess of his powers which is beyond the scope and spirit of section' 22-A, Cr.P.C.. Being a Justice of Peace, he was only required 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 other interpretation to section 22-A(6), Cr.P.C. Would be doing violence to scheme of Criminal Procedure Code, 1898 which could not be permitted. He has no right to assume the role of investigating agency or prosecutor.
He has been conferred an administrative duty with a role of vigilance to redress the grievance of those complainants who have been refused by the police officials to register their reports. If the Justice of Peace will assume and undertake full-fiedged investigation and enquiry before registration of F.I.R, then sections 154 and 155, Cr.P.C. Will become redundant and. Prior registration of F.I.R., every person will- have to approach first to the Justice of Peace for scrutiny of his complaint and after clearance, his F.I.R will be registered which is beyond the comprehension, prudence and intention of legislature".
6. In the case of Afzal Khan (supra) it has been observed as follows:-- "There are two different complainants of an occurrence with two completely different Versions. In the case of Ahmed Yar v. Station House Officer, District Sahiwal and 8 others (2007 PCr.LJ 1352), it has been held that there is no embargo against registration of Second F.I.R in respect of different version given by the aggrieved party of the same occurrence. Similarly, it has been held in the case- of Mst Anwar Begum v. Station House Officer, Police Station Kalri West, Karachi and 12 others (PLD 2005 Supreme Court 297) that a complainant is justified to seek registration of another F.I.R. As per his on version. It has been further observed that if an information given to a police officer, which discloses the commission of a different cognizable offence, then unless, it is mere amplification of the first version, must be recorded by the police.
For the foregoing reasons, District Police Officer, Sheikhupura is directed to record the statement of the present petition and if the same disclosed the commission of a different cognizable offence as compared to the offence, regarding which the F.LR. No.172 of 2010, dated 18-2-2010, has already been registered, then he should proceed under section 154, Cr.P.C. And register a second F.I.R the instant petition is accordingly disposed of"
7. After considering the citations of this Court and of Hon'ble Supreme Court in the case of Muhammad Bashir, I am of the view that the learned Ex- Officio Justice of Peace having no jurisdiction to detect upon merits or demerits of the case. He has only to see whether any cognizable offence is made out from the narration of the applicant and he only to order for incorporation of her narration in 154, Cr.P.C. Book. The tenure of order passed by learned Justice of Peace dated 28-4-2011 is beyond his jurisdiction which is set aside. Respondent No.1 is directed to record. The statement of the applicant and consider the medico legal certificate issued by the Medico-Legal Officer and if any cognizable offence is made out her such statement be incorporated in 154, Cr.P.C. Book.
With the above observations, the criminal miscellaneous application is disposed of.