FAZAL-I-HAQ ABBASI, J.---Through this constitutional petition Muhammad Amir Khan seeks quashment of F.I.R. No,77 dated 17-2-2011 under sections 162/163/164, P.P.C., registered at. Police Station Karak.
2. On 23-2-2011 Civil Judge-cum-Judicial Magistrate-III, Karak sent a complaint/allegation to District and Sessions Judge, Karak, which is reproduced below:-- "It is to bring into your kind notice that on 17-2-2011 I announced judgment titled "Abdul Manaf etc. v.
Collector etc" and decreed the suit. The plaintiff of the suit left the court room/premises but the defendant stayed there and stated addressing the undersigned that his apprehensions and information were correct upon these remarks he was asked to explain what he wants to say. The defendant namely Khusro Pervez replied that about a mouth ago he was asked by one Shifa that Amir Muhammad ADK (who is attached with this court) told him that the plaintiff was asked to pay Rs,1,10,000 to the undersigned for this case through Amir Muhammad ADK out of which Rs,70,000 have been paid and the remaining sum is to be paid later on and the undersigned has demanded same amount from him (defendant) through Amir Muhammad ADK and also told him that if he pays the same amount, the suit would be dismissed. The undersigned was shocked to hear this and immediately recorded the statement of the defendant and that of Amir Muhammad ADK and Shifa present in the court on Oath. The statement of the plaintiff could not be recorded as he had already left the court premises so was summoned subsequently and his statement was also recorded in the presence of the defendant, Amir Muhammad ADK and Mehboob Khan Advocate, who was counsel for defendant.
' From all the statements so recorded regarding the allegation levelled against the undersigned by the defendant, particularly that of plaintiff, it is not stated by any of them that any amount has been taken or given on the name of undersigned.
' The, undersigned also offered recording of her statement on Oath before all the parties as well as counsel for defendant (Mr. Mehboob Khan. Advocate), but the same defendant (who levelled the allegation against the undersigned) and his counsel did not let me to do so by expressing their full confidence on the undersigned by stating that now they are fully satisfied due to the statements of all concerned and probe into the matter by me.
' The undersigned is still ready and offer to record her statement on Oath that she has no concern with the allegation whatsoever and has decided the case on merits according to law which is certainly open to appeal/revision before the higher forums".
3. Learned Sessions Judge; Karak treated the said complaint under section 22-A, Cr.P.C. And vide order dated 24-3-2011 directed the S.H.O. Police Station, Karak to register a case under sections 162/163/164, P.P.C. Against Muhammad Shifa Sharaf, Muhammad Amir Girdawar, Karak and Abdul Manaf, upon which case was registered.
4. Learned counsel for the petitioner contended that the offences are not cognizable; therefore, Justice of Peace had no powers to direct registration of case. Reliance was placed on PLD 2007 SC 539.
5. In the case reported in PLD 2007 SC 539, in para 40 of the judgment it was held "the only jurisdiction which could be exercised by an Ex-officio Justice of the Peace under section 22-A, 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 register the F.I.R., without going into the veracity of the information in question and no more, offering any other interpretation to the provisions in question would be violence to the entire scheme of the. Criminal Procedure Code, which could not be permitted."
6. For convenience and ready reference section 22-A(6) is reproduced below:-- "an Ex-officio Justice of Peace may issue appropriate directions to the police authorities concerned, on a complaint regarding:--
(i) non-registration of criminal case,
(ii) transfer of investigation from one police officer to another, and
(iii) neglect, failure or excess committed by a police authority in relation to its functions and duties."
7. There is no cavil to the proposition that in such a situation an Ex-officio Justice of Peace under section 22-A, Cr.P.C. Is 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 register an F.I.R.
Without going into veracity of the information in question and no more. Section 155, Cr.P.C. Reads as under:-- ' Information in non-cognizable cases:--
(1) When information is given to an officer Incharge of a Police Station of the commission of an offence, within the limits of such station of a non-cognizable offence, he shall enter in a book to be kept as aforesaid the substance of such information and refer the informant to the Magistrate.
(2) Investigation in non-cognizable cases no police officer shall investigate a non-cognizable case without the order of a Magistrate of first or second class having power to try such case or send the same for trial to the Court of Session.
(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer Incharge of a Police Station may exercise in a cognizable case."
7. It would be also appropriate to reproduce section 190, Cr.P.C., which reads as under:-- "Cognizance of offences by Magistrate:-- ' All Magistrates of the first class or any other Magistrate specially empowered by the Provincial Government on the recommendation of the High Court may take cognizance of offence.
(a) ..
(b) ..
(c) Upon information received from any person other than a police officer, or upon his own knowledge or suspicion that such offence has been committed which he may try or send to the Court of Session for trial."
8. Now coming to the complaint/allegation sent by the Civil Judgecum-Judicial Magistrate-III, Karak to the District and Sessions Judge, Karak. It appears that same was sent under section 190(1)
(c), Cr.P.C, but the learned Sessions Judge treated the same under section 22-A, Cr.P.C. And issued direction for registration of a case.
9. Under section 22-A(6), Cr.P.C., an Ex-officio Justice of the Peace may issue appropriate directions to the police authorities concerned on a complaint regarding non-registration of a case. In our humble view there is no bar on issuance of directions to register a case involving non-cognizable offence, but in such a situation, the police authorities can investigate the case only after getting order from a Magistrate of first or second class having power to try such case or send the same for trial to the Court of Session. Moreover, the accused cannot be arrested without obtaining warrant of arrest, as provided under section 155(2)(3), Cr.P.C.
10. Charges against the petitioner are very serious in nature because he by his acts, omissions and commission not only obtained gratification in the name of a judicial officer but also 'tried to lower the institution of judiciary in the eyes of General public.
11. High Court is not required to stifle the prosecution case at very initial stage, if prima facie an offence has been committed ordinary course of trial before the court should not be allowed to be deflected by resorting to the constitutional jurisdiction. Reliance is placed on 2006 SCM R 276.
In view of the above discussion, this petition having no merit is dismissed in limine.