' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---With the concurrence of learned counsel for the parties, the instant case is being dealt as Pakka case.-
2. Through the instant constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Muhammad Idrees, petitioner has called in question the vires of order dated 19-8-2010, passed by learned Additional Sessions Judge/Ex-Officio Justice of Peace, Lahore/respondent No,1; whereby petition under sections 22-A, 22-B, Cr.P.C. Seeking direction to the S.H.O. For registration of criminal case against the accused persons, filed by the petitioner was dismissed.
3. Succinctly, facts of the case, arising out of the petition are that the petitioner filed an application under section 154, Cr.P.C. Before, the SHO/respondent No,2 mentioning therein that in order to purchase land measuring 10-Marlas, 70-Sq, Ft. Consisting of property No,F/2591A, situated at Misomi Karri Taray Shah, Choona Mandi, Lahore, from the legal heirs of Sardar Muhammad son of Jhanday Khan and Ch. Abdullah son of Mehtab Din, on 14-7-2004, in presence of Muhammad Ilyas, Tariq Mehmood. Mian Zulfiqar alias Chhama and Muhammad Idrees Butt, witnesses, entered into sale agreement and the sale price of the house was settled as Rs,42,00,000/- out of which an amount of Rs,10,00,000/- was paid as token money. In Iqrarnama, it was settled that the above said land shall be got mutated in favour of the petitioner on its transfer to the legal heirs. The petitioner and his brother Muhammad Ilyas, time and again approached the accused persons mentioned in the head-note (all 57 in number) to get mutated the land in their name, however, all the time reply was that the same shall be on its transfer in the name of legal heirs. Subsequently, the petitioner came to know that the accused persons in connivance with each other had mutated the same property vide Dastavez No,3173, Bahl No,1, Jild No,1514, dated 28-4-2009, in favour of Muhammad Kashif, Asif Ishaque and Muhammad Bilal. The petitioner had prayed for registration of criminal case against the accused persons.
4. Learned counsel for the petitioner while opening arguments submitted that prima facie application of the petitioner spells out commission of cognizable offence, however, the learned Additional Sessions Judge, Lahore/Ex-Officio Justice of Peace erred in law while dismissing the same. Learned counsel for the petitioner submitted that under section 154, Cr.P.C, every information relating to the commission of a cognizable offence if given orally to an officer In charge of a Police Station, shall be reduced into writing by him or under his direction. Learned counsel vehemently contended that non-registration of case by the S.H.O., on filing the petition by the petitioner before the learned Ex-Officio Justice of Peace, calling for report by the latter from the police and thereafter observing in his order certain facts as the matter belonged to civil nature, are quite contrary to law and the judgments of the superior courts of the country, on the subject. In support of this contention, learned counsel for the petitioner has placed reliance on the cases of Kehar Khan v.
Additional Sessions Judge and Ex-Officio Justice of Peace, Kotri and 3 others (2009 PCr.LJ 634), Allah Ditto v. Additional Sessions Judge, Khushab and 12 others (2008 PCr.LJ 908), Mst. Rehana Jalal v. S.H.O. Police Station Kot Addu and 3 others (2009 PCr.LJ 138). Even otherwise, learned counsel for the petitioner argued that the application for registration of case was moved prior to the filing of civil suit. Moreover, learned counsel for the petitioner emphasized, criminal and civil proceedings can proceed side-by-side. Learned counsel next argued that Ex-Officio Justice was though empowered to direct registration of a case, but had no jurisdiction to undertake a detailed analysis of the allegations and other material and record his own opinion thereon which needed investigation. In support of this contention, learned counsel for the petitioner referred case-law in the case of Mst. Almas Sarwar v. Additional Sessions Judge, Sargodha and 3 others (2010 PCr.LJ 1466). Learned counsel argued that in such circumstances the order of the learned Ex-Officio Justice of Peace is capricious, which is entitled to be set at naught, as a consequence whereof, the S.H.O. May be directed to register the case.
5. As against above, learned Additional Advocate General assisted by learned counsel representing the accused, against whom F.I.R. Has been sought, has vehemently opposed the contentions raised by learned counsel for the petitioner. It was argued that as observed by the learned Ex-Officio Justice of Peace, the matter is purely of civil nature and in this regard civil suit is already pending. Learned counsel next stated that the petitioner may file suit for specific performance of agreement to sell for redressal of his grievance. Learned counsel went on arguing that even otherwise law has provided alternate remedy by way of filing complaint, as such the order of the learned Ex-Officio Justice of Peace, being well- reasoned, the same invites no interference.
6. I have given my anxious consideration to the arguments and gone through the record as well as case-law cited by learned counsel for the petitioner.
7. First of all I intend to dilate upon the course necessary for registration of a crime report. In the Criminal Procedure Code, section 154, Cr.P.C. Deals with this question. It would be advantageous to reproduce the same for ready reference, which reads as under:- "Every information relating to the commission of a cognizable offence if given orally to an officer in charge of a police-station, shall be reduced to writing by him or under his direction, and be read over to the informant, and every such information, whether given in writing or reduced to writing as aforesaid shall be signed by the person giving it,..."
Bare perusal of the section supra reveals that a statutory duty has been cast upon officer In charge of Police Station to enter information regarding commission of any cognizable offence.
Requirement of law is that Police Officer has to record F.I.R. Mandatorily of a cognizable case under Section 154, Cr.P.C. But where it is a non-cognizable case, the mode is quite different.
8. If the S.H.O. Of any Police Station, on presentation of information, orally or in writing, does not initiate proceedings in accordance with law as envisaged in section 154, Cr.P.C., the law has provided remedy to the aggrieved person to move to the Ex-Officio Justice of Peace. Provisions of section 22-A(6), Cr.P.C. Create a new forum to rectify a wrong done by an officer in charge of police station by refusing to register a criminal case. It would be advantageous to reproduce section 22- A(6), Cr .P .C., which reads as under:- - "[(6) An ex-officio justice of the Peace may issue appropriate directions to the police authorities concerned on a complaint regarding:--
(i) non-registration of criminal case;
(ii) ....
(iii) ..
I deem it necessary to mention here that Ex-Officio Justice of Peace is not for specific hours rather he is empowered to act/proceed round the clock. Moreover powers conferred on Justice of Peace under section 22-A(6), Cr.P.C. Though are not at par with those of writ of mandamus but are substantially of that nature.
9. The question before the Court is whether the Ex-Officio Justice of Peace can initiate preliminary inquiry or not. The Ex-Officio Justice of Peace has been empowered under section 22-B, Cr.P.C.' in this regard, which reads as under:- "[22-B. Duties of Justices of the Peace.---Subject to such 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 offence, also prevent the removal of any thing 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...."
Justice of Peace, however, under no provision of law could, direct or even observe with regard to the nature of offence e.g. It is civil or otherwise. The duty of the Ex-Officio Justice of Peace is to go through the contents of the application and, if any cognizable offence is made out to order the S.H.O. To proceed under section 154, Cr.P.C.
10. If the 'impugned order dated 19-8-2010, passed by learned Additional Sessions. Judge/Ex-Officio Justice of Peace is seen carefully it reflects that after having gone through the police report, he arrived at the conclusion that the matter was of civil nature regarding which civil suit was already pending. It is well settled by now that registration of criminal case could not be refused on the ground of pendency of civil litigation especially when the application for registration of case had been filed prior to filing civil suit, as is in the instant case. Even otherwise civil suit pertains to civil rights of the parties and the same in no way, bars initiation of criminal proceedings, if the same are proved.
11. Now question arises, that if such course has been provided then there is apprehension of initiation of undue proceedings and the people may lodge false cases against the others to satisfy ulterior motives. The Pakistan Penal Code under section 182, has provided remedy against the same which reads asunder: "182. False information with intent to cause public servant to use his lawful power to the injury of another person.--Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant:--
(a) to do or omit anything which such public servant ought not to do or omit if the true state of fact respecting which such information is given where know by him, or
(b) to use the lawful power of such public servant to the injury or annoyance of any person...."
12. The upshot of my above discussion is that the impugned order dated 19-8-2010, passed by learned Additional Sessions Judge/Ex-Officio Justice of Peace, Lahore, is against the law and facts of the case and he, in no way, had any jurisdiction to comment upon the fact that the matter is of civil nature. Therefore, the same is set aside, as. a result whereof, the S.H.O. Of concerned Police Station is directed to record the version of the petitioner and then proceed strictly in accordance with law, as provided under section 154, Cr.P.C. However, if the version of the petitioner/complainant proves to be false, he can be proceeded under section 182, P.P.C. I am constrained in my view from the land mark judgment of august Supreme Court of Pakistan in the case of Muhammad Bashir v.
Station House Officer, Okara Cantt, and others (PLD 2007 SC 539)
13. The instant writ petition is accepted in the above terms.