' SHUJAAT ALI KHAN, J.---By way of this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed for setting aside of order dated 12-6-2012 passed by the learned Additional Sessions Judge, Bahawalpur, whereby he dismissed the petition filed by the petitioner under section 22-A and B. Cr.P.0 and declined to issue direction for registration of a criminal case.
2. Shorn of unnecessary details, the facts, forming factual canvass of the instant petition, are that the petitioner filed an application before S.H.O. Police Station Saddar, Bahawalpur (respondent No,2) for registration of criminal case against respondents Nos.3 to 6. As no action was taken by respondent No,2 on the said application, the petitioner filed a petition under section 22-A, Cr.P.C.
Before the learned Additional Sessions Judge/ExOfficio Justice of Peace, Bahawalpur (respondent No,1) for issuance of a direction to respondent No,2 for registration of .Criminal case against respondents Nos.3 to 6, On the said petition comments were called from respondent No,2 who reported that the petitioner is neighbourer of respondent No,3 and he, in absence of said respondent, tried to demolish the intervening wall and to occupy a room and courtyard of respondent No,3. The learned Additional Sessions Judge, vide order dated 12-6-2012 dismissed the said application of the petitioner; hence this petition.
3. It is contended by learned counsel for the petitioner that respondent No,1 while passing the impugned order did not take into consideration that Police was under obligation to record the version of the petitioner under section 154, Cr.P.C; that though the petition filed by the petitioner discloses commission of a cognizable offence but respondent No, I has illegally dismissed the same; that the injury on the person of Muhammad Azam, brother-in-law of the petitioner, confirm that the respondents entered in the house of the petitioner and committed the offence as alleged by him; that while dealing with the petition filed by the petitioner, respondent No,1 had only to see as to, whether the commission of a cognizable offence was made or not; that any inquiry conducted by the Police prior to registration of case is illegal and the same is of no worth and that respondent No,1 >has dismissed the petition of the petitioner in a slipshod manner.
4. Conversely; learned counsel appearing on behalf of respondents Nos.3 to 6, while defending the impugned order submits that petitioner is resident of a place 80-Kms away from the place;of occurrence, therefore, the stance taken by the petitioner in his petition under section 22-A & B of Cr.P.C. Is totally false and frivolous; that in fact there is a dispute between the petitioner and respondents Nos.3 to 6 over a patch of land inherited by wife of the petitioner; that Muhammad Fayyaz (respondent No,3) reported the matter to the Police earlier to the filing of the petition by the petitioner before the learned Ex-Officio Justice of Peace and that the petitioner wants to get register a criminal case against the respondents just to humiliate them.
5. Learned Assistant Advocate General has supported the stance taken by learned counsel appearing on behalf of respondents Nos.3 to 6 by submitting that since the injuries on the person of Muhammad Azam does not constitute commission of a cognizable office, therefore, the learned Ex-Officio Justice of Peace has rightly dismissed the petition and that during inquiry by the Police the plea of the petitioner has been found false.
6. I have heard learned counsel for the parties, as well as learned Assistant Advocate-General in addition to going through the documents appended with this petition.
7. The grievance voiced by the petitioner through the instant petition is that despite commission of a cognizable offence the Police is not recording his version though they are bound to do so under section 154, Cr.P.0 which for convenience of reference is reproduced hereinbelow:-- "154. Information in cognizable cases. Every information relating to the commission of a cognizable offence if given orally to an officer incharge 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 td be kept by such officer in such form as the Provincial Government may prescribe in this behalf. "
A perusal of the afore-quoted section makes it abundantly clear that Police is duty bound to record the version of a person if commission of a cognizable offence is made out. The legislator has knowingly used word 'shall' instead of 'may' meaning thereby that no option is left with the Officer Incharge of the Police Station to record version of a party in a case where the contents of the statement/application constitute commission of a cognizable offence. While dealing with the question regarding the power of the Incharge Police Station to refuse registration of a case, the august Supreme Court of Pakistan, in the case reported as Muhammad Bashir v. S.H.O. Okara Cantt.
And others (PLD 2007 SC 539) inter alia held as under:- "The wisdom was not far to find. If the S.H.O. Was given the authority to determine the truthfulness or the falsehood of the allegations levelled against someone and thereafter to decide to record or not to record such allegations as F.I.R., then such a police officer would have got blessed with the power to decide about the guilt or innocence of an accused person. This was, however, far from the envisaged by the law-makers regarding the identification and the consequent acquittal or conviction of accused persons as the said task stood assigned only to the courts of law and had never been conceded to police officers."
' According to the afore-quoted portion of the judgment, S.H.O. Is, nobody to determine the guilt or innocence of a person without registration of a criminal case. Insofar as the case in hand is concerned, the Police instead of registering formal F.I.R. Regarding the incident proceeded to inquire into the matter in an unlawful manner. The said approach means to put the cart before the horse, thus the same cannot be approved of.
8. Now coming to the question regarding powers of the Ex-Officio Justice of Peace, towards disposal of petitions filed under section 22-A and B of Cr.P.C., a reference can be made to the case of Muhammad Bashir (supra) wherein it has inter alia been held as under:- "40. Therefore, in our opinion, the 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 the provisions in question would be doing violence to the entire scheme of the Cr.P. C. Which could not be permitted."
' If we adjudge the impugned order on the touchstone of the afore-quoted portion of the judgment, it is crystal clear that respondent No,1 while dismissing the petition filed by the petitioner under section 22-A and B, Cr.P.C. Did not appreciate the law in its true 'perspective and pioceeded on wrong footing while totally relying on the report submitted by the Police and declined to direct the Police to register a criminal case.
9. As a necessary corollary to the discussion made in the foregoing paragraphs, this petition is accepted and the impugned order dated 12-6-2012 passed by respondent No,1 is set aside.
Consequently, respondent No,2 is directed to register a criminal case on the move of the petitioner.
Parties are left to bear their own costs.
10. Before parting with this order, it is observed that registration of criminal case does not mean that respondents Nos.3 to 6 be arrested forthwith rather the investigation of the case would be conducted in an impartial and transparent manner and if the Investigating Officer comes to the conclusion that sufficient incriminating material is available, he shall proceed against them strictly in accordance with law without being influenced by any observation given above. Further, if the Investigating Officer concludes that the case wag false and frivolous, he would feel no hesitation to proceed against the complainant under section 182 P.P.C.