1. MUHAMMAD ALI MAZHAR, J.---This Criminal Miscellaneous Application is brought by the applicant under section 561-A, Cr.P.C. Against the impugned order dated 12-7-2010, passed by the Additional Sessions Judge/Justice of Peace, Naushero Feroze in Criminal Miscellaneous Application No. 607 of 2010.
2. The learned counsel for the applicant argued that earlier Criminal Miscellaneous Application. No. 1184 of 2009 was moved by the same applicant under section 22-A, Cr.P.C. In the Court of Sessions Judge Naushero Feroze in which the applicant Mumtaz Ali complained that his brother Murtaza Khaskheli was on bail in many cases, which are proceeding in the Courts. On 19-9-2009 S.H.O, Ghulam Shabir Khoso, Police Station Mithani with his subordinate staff forcibly entered into the house of applicant and hand over the custody of Murtaza Khaskheli to S.H.O, Ghulam Shabir, thereafter S.H.O took Murtaza in the mobile police. During the pendency of this application, the brother of applicant was murdered, therefore, the advocate appearing in that application was informed by the applicant that since his brother has been murdered, therefore, he has no more interested in that application. On this statement, the earlier application was dismissed as withdrawn, which fact is reflecting from the court order available at Page 47. The learned counsel then invited my attention to another Criminal Miscellaneous Application No. 607 of 2010 moved in which the respondent was SHO, Police Station, Naushero Feroze and the State. Though in the second application, the facts begins from the said date when the police officials raided at the house of the applicant and took away the Ghulam Murtaza and in paragraph 8 of the application, the factum of earlier application was disclosed. The gist of paragraph 10 of the application is that on 20-5-2009, the applicant was at his home, the relatives names of whom are mentioned in the same paragraph informed the applicant with the name of accused that they were roping the hands and legs of his brother Murtuza and laid him on the ground and one white colour car drove on him due to which his right arm and abdomen stood crushed, thereafter, Ghulam Shabir Khoso came out from the said car. The applicant had prayed that the respondent No.1 be directed to record the statement of the applicant and lodge F.I.R. Against the proposed accused persons on disclosure of a cognizable offence. The Justice of Peace, Naushahro Feroze passed the impugned order on 12-7-2010 and dismissed the application on the ground that the applicant's brother Murtaza was holding a criminal record and the respondent No.1 produced such record showing that deceased was involved in 21 criminal cases registered at different police stations of Naushahro Feroze. The same SHO also submitted a report that Murtaza died in a road accident. He also produced postmortem report of the deceased and the Medical Officer opined that case is purely a road accident. The Justice of Peace also mentioned that on the earlier application moved under section 22-A, Cr.P.C., detailed enquiry was held by S.P. Investigation, who reported that applicant's brother was involved in so many criminalcases.
3. The learned counsel for the applicant argued that the Justice of peace dismissed the application without appreciating the facts of the case. He also failed to consider and distinguish the difference in both the applications moved by the applicant. The Justice of peace has no jurisdiction to touch the merits of the case. It has to see only whether from the statement of complainant any cognizable case is made out or not. The police official is duty bound to record the statement and if any cognizable case is made out, he is required under the law to register the case. Neither the police official has performed his duty nor the. Justice of peace has considered the complaint but the same was dismissed in a slip shod manner. In support of his argument, the learned counsel relied upon the following case law.
1. PLD 2005 Karachi 621, (Mst. Bhaitan v. State and others). In this matter, the learned Judge of this Court held that powers of the Justice of the Peace are very limited which have been given to aid, assist and authorize the criminal jurisdiction system. Said powers are neither supervisory nor judicial, but are administrative and ministerial in nature. No notice to be given to any body for forming an opinion. Ex-officio Justice of the Peace who is a senior Judicial Officer has to form an opinion about the offence being cognizable or non-cognizable from the facts narrated to him by the complainant orally or in writing and for such purpose he is not required to issue notice to accused or to police officer or to anybody else, he has to form his own independent opinion from the facts narrated to him. In the same judgment, it is further held that S.H.O. Is not empowered to refuse registration of F.I.R. Officer Incharge of police station is bound to register under section 154, Cr.P.C. And 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. Condition precedent for recording F.I.R. Is that information must disclose a cognizable offence and that too a cognizable one. 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.
2. PLD 2007 Supreme Court 539, (Muhammad Bashir v. Station House Officer, Okara and others). In this Judgment, the honorable Supreme Court held that enquiry as to correctness or otherwise of information received by an Officer Incharge of Police Station for the purpose of being reduced in writing as F.I.R. And powers of Officer Incharge of Police Station to refuse to record F.I.R. Only because, in his opinion, the allegations conveyed to him were false. Scope, no authority vested with an Officer Incharge of a Police Station or with anyone else to refuse to record an F.I.R. Check against lodging of false F.I.Rs. Was not refusal to record such F.I.Rs, but punishment of such informants under section 182, P.P.C. Etc. Which should be, if enforced, a fairly deterrent against misuse of the provisions of section 154, Cr.P.C. It was further held that only jurisdiction which could be exercised by an Ex-officio Justice of the Peace under section 22-A(6), 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 record an F.I.R. Without going into the veracity of the information in question, and no more. Offering any other interpretation to section 22-A(6), Cr.P.C.
4. Would be doing violence to the entire scheme of Criminal Procedure Code, 1898 which could not be permitted. Refusal to record,, in the register of F.I.Rs. The information conveyed to him by complainant which information did disclose the commission of a cognizable offence, was illegal and equally invalid was the exercise undertaken by Ex-officio Justice of the Peace wherein the application of complainant was rejected. Amendments introduced in sections 22-A and 25, Cr.P.C.
5. Had been so made to lessen the excessive burden of the High Courts which was got created through filing of writ petitions seeking registration of criminal cases and transfer of investigation.
6. The learned A.P.-G. Argued that the justice of peace has passed the proper order as the complaint was tainted with malice and without any truth in substance hence after due ventication, it was rightly dismissed. In support of his argument, he cited following case law:-- 2010 YLR 189, (Imtiaz Ahmed Cheema, S.H.O. v. S.H.O., Police Station Dharki). In this matter, the learned Single Judge of this court held that the grievance of applicant who was S.H.O., was that he intercepted accused and recovered cocaine of 120 grams from him and accused was challaned.
7. Subsequently on application of brother of accused Justice of Peace without verifying the facts directed In charge Police Station concerned to record statement of brother of accused and if cognizable offence was made out against applicant, case be registered against applicant. Such order had been challenged by the applicant. Provisions of section 22-A, Cr.P.C. Had been misused in a number of cases. Wisdom of legislature was not that any person who in discharge of duty takes action against accused would be subjected to harassment by invoking provisions of section 22-A, Cr.P.C. Court in mechanical manner should not allow application under section 22-A, Cr.P.C.
8. But should have applied its mind as to whether the applicant had approached the court with clean hands or it was tainted with malice. Unless such practice was discouraged, it would have far reaching effect on the Public Officials who in discharging of duties take actions against them. Law had to be interpreted in a manner that its protection extends to every one. Order of Justice of Peace was passed in the present case in mechanical manner and approaching of complainant to the Justice of Peace reflected that it was tainted with malice.
9. Mr. Rajib Ali Khoso Advocate filed power on behalf of proposed accused Ghulam Shabir Khoso. The learned counsel appearing for the proposed accused argued that the order passed by the Justice of Peace is just and proper and after considering the material facts, the application was dismissed and there is no necessity to give any directions to the SHO to record the statement of the applicant.
10. He further argued that the application was filed with mala fide intention which was liable to be dismissed without any directions to record the statement of the complainant or register the case.
11. After hearing the prose and cons, I have reached to the conclusion that the order passed by the learned Justice of Peace is totally based on the earlier application moved by the applicant for the alleged charge of abduction but in the second application which was in fact moved for the registration of F.I.R. Due to murder of the applicant's brother was not considered at all and simply the report was accepted which showed that he was died in a road accident. Under section 22-A, Cr.P.C, it is not the function of the Justice of Peace to minutely examine the case and to give any finding on it but he has to see only whether from the facts narrated in the application, any cognizable case is made out then to pass directions that the statement of complainant be recorded under section 154, Cr.P.C. And F.I.R. Be lodged. Powers of the Justice of the Peace are very limited which have been given to aid, assist the criminal jurisdiction system. Powers conferred upon him are neither supervisory nor judicial, but are administrative and ministerial in nature. IB The honorable Supreme Court held in its judgment referred to above that criminal offences have been categorized by the Cr.P.C. Into two classes i.e. The ones which were cognizable and the others which were non-cognizable. Section 154 of the Cr.P.C. Prescribes the manner in which an information conveyed to a S.H.O. With respect to the commission of a cognizable offence was to be dealt with while the provisions of section 155 (1) of the said Code tell us of the procedure envisaged vis-a-vis the information relating to a non- cognizable offence. These provisions read as under:-- Sections 154 and 155 CR.P.C. 154 Information in cognizable cases. 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, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf.
155. Information in non-cognizable cases. (1) When information is given to an Officer Incharge of a Police Station of the commission 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 into 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 in charge of a police station may exercise in a cognizable case.
12. In the same judgment, it was further held that the scheme of law which becomes apparent from a bare perusal of these provisions is that whenever an Officer Incharge of a Police Station receives some information about the commission of an offence, he is expected first to find out whether the offence disclosed fell into the category of cognizable offences or was one which was non- cognizable. Once he was through with this exercise then the word 'shall' appearing in the said provisions of section 154, Cr.P.C. Would take over which obliged, the SHO, thereafter to reduce the said information to writing in the First Information Report Register. There is no provision in any law, including the section 154 or 155 of. The Cr.P.C. Which authorized an Officer In charge of a Police Station to hold any enquiry to assess the correctness or the falsity of the information received by him before complying with the command of the said provisions which obliged him to reduce the same into writing irrespective of the fact whether such an information was true or otherwise.
13. 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 and 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 SHO to record an F.I.R. Without going into the veracity of the information in question, any other interpretation to section 22-A(6), Cr.P.C.
14. Would be doing violence to the entire 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 fledged 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 compliant and after clearance, his F.I.R. Will be registered which is beyond the comprehension, prudence and intention of legislature.
15. The judgment cited by the learned A.P.-G. Is quite distinguishable to the facts and circumstances of the present case. It seems to me that the judgment of the honuorable Supreme Court referred to above which is purely based and focused on the powers of justice of peace perhaps was not placed before the learned single bench of this court. Even otherwise, the facts and circumstances of the judgment reported in 2010 YLR 189 are totally different, in which it was held that court in mechanical manner should not allow application under section 22-A, Cr.P.C. But should have applied its mind as to whether the applicant had approached the court with clean hands or it was tainted with malice. In that matter S.H.O. Moved a criminal miscellaneous application on the ground that he interpreted one Rafique Ahmed and recovered cocaine of 120 grams and he was challaned. Thereafter the accused brother namely Bashir Ahmed has approached Sessions Court with an application under section 22-A, Cr.P.C. Seeking registration of the case against the S.H.O.
16. And court without verifying the facts has ordered that the S.H.O. Concerned would record the statement and shall register the case against the S.H.O. While in the present case, earlier application was moved by the applicant against abduction which was not pressed due to murder of his brother then, he moved fresh application for registration of F.I.R. Against the proposed accused who were allegedly involved in the murder of the applicant's brother. There is nothing to suggest that the application moved before the justice of peace was tainted with malice.
17. At this juncture, I would also like to quote another judgment of the honourable Supreme Court which is being relied upon by the different justice of peace while dismissing the application. The judgment is reported in PLD 2010 Supreme Court 691, (Rai Ashraf v. Muhammad Saleem Bhati). In this judgment, the honorable Supreme Court has held that each and every case is to be decided on its own peculiar facts and circumstances. The honourable court has also considered sections 22-A, 22-B, 154 and 200, Cr.P.C. In the above matter, the application was filed under section 22-A, Cr.P.C. With the allegation that petitioners had demolished the outer wall and gate of respondent No.1 with police aid and had taken household articles, gold ornaments and cash amount which was lying in the boxes and almirahs. The learned Additional Sessions Judge/Ex-Officio Justice of the Peace, Lahore after securing report from the concerned S.H.O. And after providing opportunity of hearing, dismissed application of the respondent No. 1 vide order dated 24-11-2007. Respondent No.1 being aggrieved, filed constitutional petition before the High Court which was disposed of with the observation that the copy of the writ petition be sent to the concerned S.H.O. Who was directed to look into the matter and pass appropriate orders strictly in accordance with law. The honourable Supreme Court held in this case that the respondent No.1 has more than one alternate remedies as alleged by him in the application that he had secured restraining order against the petitioners from the civil court, therefore, Justice of the peace observed that respondent No. 1 had to avail appropriate remedy for violation of status quo before the civil Court under the provisions of C.P.C. It was also admitted fact that there was a dispute of property between the parties as alleged by the petitioners and observed by the Courts below. Finally, it was concluded that the learned High Court had erred in law to exercise discretion in favour of the respondent No.1 without realizing that the respondent No.1 had filed application before the Additional Sessions Judge/Ex-Officio Justice of the Peace to restrain the public functionaries not to take action against him. In the above judgment, the earlier judgment reported in PLD 2007 Supreme Court 539, was also discussed in which, detailed discussion was made on sections 22-A, 154 and 155 the Criminal Procedure Code and the honorable Supreme Court provided a landmark guideline on the power of justice of peace. In my view, the judgment reported in PLD 2010 SC 691 is dealing a particular circumstances in which the order, rejecting the application by the justice of peace was affirmed on the ground that remedy may be availed against the violation of status quo order before the civil Court under the provisions of C.P.C. It was also admitted fact that there was a dispute of property between the parties as observed by the Courts below. Another reason of disagreeing with the finding of the learned High Court was that the respondent No.1 had filed application before the Additional Sessions Judge/Ex- Officio Justice of the Peace to restrain the public functionaries not to take action against him in accordance with the LDA Act 1975, Rules and Regulations framed thereunder, therefore, it was held that petition was filed with mala fide intention. In this case, the honorable Supreme Court has only affirmed the order of rejection, keeping in view the above reasons but the earlier judgment (PLD 2007 SC 539) regarding the powers of justice of peace is till intact as guiding principle for all justice of peace which is to be kept in mind while allowing or rejecting the application under section 22-A, Cr.P.C. As in that very judgment in paragraph (50), the honorable Supreme Court directed the Registrars of all four High Courts in the country to send the copy of judgment to all Session Judges for their guidance and compliance.
18. The upshot of this discussion is that the impugned order dated 12-7-2010 is set aside. The respondent No.1 is directed to record the statement of the applicant and if any cognizable case is made out, he should register the F.I.R. In accordance with law.
19. Criminal Miscellaneous Application is disposed of in the above terms.