' NISAR HUSSAIN KHAN, J.---Impugned herein is the order of learned Justice of Peace, Bannu, dated 15-8-2011, passed under section 22-A(6), Cr.P.C., whereby direction for registration of F.I.R. Against the petitioner has been issued.
2. The resume of the case forming the background of instant Writ Petition is that respondent No,2, Hamid Khan filed an application under section 22-A(6), Cr.P.C. Before the learned Justice of Peace, Bannu on 23-2-2007, alleging therein that he is law-abiding citizen and a businessman by profession, who has never been involved in any illegal activity. While respondent, now petitioner herein, is habitual of rampant misuse of police uniform and locals have become fed up of his nefarious activities. The people who refuse to accede the demands of respondent are teased on one pretext or other. He has been making unlawful demands, but the petitioner had refused to accede; that on 19-2-2007, he raided the house of the petitioner, now respondent at about 2-00 p.m. Along with police contingents and entered his house by scaling over the wall, without any justification, searched the house and thereafter was dragged out by putting cloth sheet in his neck and brought to the police station in same condition, bare footed. During the same process his house-hpld articles were damaged and Rs,10,000 cash was also taken by him from underneath the pillow of his bed and. Put in his own pocket; that the police officials severely thrashed him in the police station and thereafter he was let free at 4-00 p.m. On the intervention of Naib Nazim Union Council. He complained of the incident against the petitioner before D.P.O./S.P. Bannu at 20-2-2007, but to no avail, hence filed application under section 22-A(6), Cr.P.C.
3. Learned Justice of Peace dismissed the application of Hamid Khan on 5-4-2007, after hearing the petitioner, mainly on the ground that he was involved in number of criminal cases and his history sheet was opened and maintained by the SHO, whereby activities were continuously monitored by the police. This order of learned Justice of Peace was challenged by Hamid Khan, respondent before D.I. Khan Bench of this Court, through Writ Petition No,137 of 2008, which was accepted on 16-6-2011. Order of learned Justice of Peace was set aside and the matter was remanded for re-writing of the judgment after hearing the parties, in light of principle laid down by Hon'ble Supreme Court in case "Muhammad Bashir Khan v. Station House Officer, Okara Cantt. And others" (PLD 2007 SC 539). After remand, the learned Justice of Peace/Sessions Judge, Bannu passed impugned order on 15-8-2011, whereby the application of respondent No,2 was accepted and direction was issued to the S.H.O. Concerned for registration of the case against the petitioner under sections mentioned in heading of application under section 22-A(6), Cr.P.C.
4. Learned counsel for the petitioner argued that no direction for registration of case can be issued by the learned Justice of Peace unless there is a complaint in written forth submitted before SHO, as it is basic requirement of section 22-A(6), Cr.P.C. So the direction issued by the learned Justice of Peace, in the instant case, is illegal and without lawful authority, as there is no application / complaint filed by the respondent to SHO concerned. Learned counsel further contends that there is a reference of oral complaint, in Para No,8 of his application before the DPO/SP Bannu, but the said official has not been arrayed in panel of respondents. So the application filed by the respondent is not maintainable. He contends that learned Justice of Peace has exceeded in exercise of his jurisdiction, while passing an order for insertion of specific sections of law in the F.I.R., as it is beyond the scope and parameter of section 22-A(6), Cr.P.C., hence the impugned order is liable to be quashed.
5. Learned counsel for the respondents by controverting the arguments of learned counsel for the petitioner, contends that the impugned order has been passed in compliance with the order of this Court, so no writ can be issued against the order of the Court itself. Learned counsel further contends that the petitioner has no right to agitate any other point except the one reflected in admitting note of the instant Writ Petition. He referred the order dated 22-5-2007, whereby petitioner has been awarded punishment of forfeiture of one year approved service by competent authority, after conducting inquiry regarding the same incident and prayed for dismissal of the instant Writ Petition.
6. Arguments of learned counsel for the parties heard at length and record scanned with their assistance.
7. The bare perusal of record transpires that some serious allegations have been levelled against the petitioner by respondent No,2, Hamid Khan in his complaint before the Justice of Peace. His complaint was turned down by learned Justice of Peace, mainly on the ground that the petitioner herein, had provided some F.I.Rs,, registered against him, without going in to the merits of his application. This order of learned Justice of Peace, dated 5-4-2007 was challenged in Writ Petition No,137, of 2008, which was allowed on 16-6-2011, at D.I. Khan Bench of this Court. The matter was remanded to the learned Justice of Peace, with the direction to rewrite the judgment/order after hearing the parties, in light of principle laid down by Hon'ble Supreme Court in case of Muhammad Bashir v. Station House Officer, Okara Cantt. And others (PLD 2007 SC 539). It appears that this order was not challenged by the petitioner before the Hon'ble Supreme Court, so it had attained finality.
Learned Justice of Peace has passed impugned order in light of the direction of this Court passed in Writ Petition No,137 of 2008. Learned counsel did not urge any grievance on the point that learned Justice of Peace has violated the direction of this Court and rightly so because the impugned order is in accordance with the direction of this Court, except the direction for insertion of specific sections of P.P.C., mentioned in complaint.
8. The objection of learned counsel for the petitioner qua the absence of an application/complaint to the SHO in written form is misconceived. Section 22-A(6), Cr.P.C., does not postulate any such command that Justice of Peace shall only entertain the complaint when the grievance in written form to the SHO concerned is not redressed by registration of F.I.R. For convenience and to clarify the proposition, section 22-A(6), Cr.P.C. Is reproduced hereinbelow:-- "22-A, Powers of Justice of the Peace.
(1)..
(2) ......................................
(3) ....................................................
(a) ................................
(b) ..........................................
(c) ...............................
(d) ................................
(4) ......................................
(5) ..................
(a) ...................................
(b) ...................................
(c) ...................................
(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) 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."
' Learned counsel for the petitioner laid stress upon the word "complaint' appearing in subs section
(6) of section 22-A, Cr.P.C., but we are constrained to hold that it is with reference to the complaint filed before the Justice of Peace not to the SHO. Whereas information regarding cognizable offence is "orally" given to the SHO, which is reduced into writing by him under section 154, Cr.P.C. And signed by informant or it may be in a written form, as well. But it is not imperative for the informant for any cognizable offence to convey the information of cognizable offence in written form to the SHO. However, it is legal obligation of the SHO to register an F.I.R. In compliance with the command of section 154, Cr.P.C. On any information of cognizable offence. Likewise it is not requirement of law that the DPO must be arrayed in panel of respondents, while submitting a complaint before Justice of Peace. Because there is no format provided in the relevant provision of statute as well. Besides that, while dealing with the complaint of non-registration of criminal case, learned Justice of Peace is obliged to consider the substance and not the form of complaint.
9. The objection of learned counsel that Justice of Peace has no jurisdiction to pass direction of insertion of specific sections of law, has got substance. The bare perusal of the ibid section mentioned herein above, clearly reflects that no such powers has been vested with the Justice of Peace to pass an order for insertion of appropriate/specific sections of law in the F.I.R. Any such complaint, in this regard, acceded by Justice of Peace, would touch the merits of case at premature stage. The Illaqa Magistrate, being over all incharge of a criminal case, even during the investigation, has the opportunities from time to time to go through the record. He can direct the Investigating Officer to add or delete any section of penal laws. On submission of report under section 173, Cr.P.C., while dealing with case, he can pass any such direction. Whereas the trial Court is not bound by the ipse dixit of police, but can frame the charge under the penal provision, which is attracted/applicable in light of allegation and available evidence and may rectify the mistake of police, which has gone unnoticed from the Magistrate. The learned Justice of peace is well advised to refrain from entertaining any such complaint, at such a premature stage. They may ask the complaining party to approach the concerned' Magistrate or the trial Court, for redressal of their grievance.
10. In light of the above discussion, this Writ Petition is partially allowed and the direction of insertion of specific sections of law is struck down, while remaining order is maintained.