' SHAHNAWAZ TARIQ, J.---Through the instant Criminal Miscellaneous Application, the applicant Mst.
Farzana daughter of Muhammad Arab assailed the order dated 7-8-2013 passed by the court of learned Additional Sessions Judge/Justice of Peace, Uaburo, whereby her Criminal Miscellaneous Application No,1109 of 2013, Re. Farzana v. SHO P.S Khambhra for lodging of F.I.R. Was disposed of with direction to the applicant to file direct complaint before the court having competent jurisdiction.
2. The relevant facts as disclosed by the applicant in her Criminal Miscellaneous Application No,1109 of 2013 are that on 15-4-2013 her parents and other house inmates had gone to attend the funeral ceremony of their relative and she was alone in the house, when at about 1100 hours, all of a sudden the proposed accused namely Mukhtiar son of Anwar by caste Malik along with two unidentified persons duly armed with pistols entered into her house, and the unknown persons pointed out the pistol and asked her to remain silent, and the proposed accused Mukhtiar took her in the room, where unknown persons caught her legs, tied cloth on her mouth and proposed accused Mukhtiar allegedly, committed rape with her forcibly, then she raised cries which attracted her cousin Saddam son of Shahzado and Ghouse Bux son of Punhal by caste Bhayo, and they came running there and on seeing them all the accused fled away from the scene of incident.
She narrated the above facts to P.Ws. The applicant also stated in her application that she along with witnesses went to Police Station Khambhra and narrated the facts to SHO who did not take any action, thereafter, the father of applicant also moved application to DIGP, Sukkur, which was forwarded to the DSP Ubauro, but no action was taken in this regard. Being disappointed from police concerned the applicant filed Criminal Miscellaneous Application No,1109 of 2013 before the learned Sessions Court, Ghotki for the purpose of registration of F.I.R. Which was transferred to the court of learned Additional Sessions Judge/Justice of Peace, Ubauro, but the same was also declined by the said court vide order dated 7-8-2013, which has been impugned by the applicant through the instant Criminal Miscellaneous Application.
3. Mr. Noor Ahmed Chadhar, learned counsel for the applicant has contended that the court of learned Sessions Judge/Justice of Peace Ubauro, wrongly believed the statement of respondent No,1, SHO Police Station Khambra, which was a false and concocted report just to save accused persons from legal punishment. He also contended that the learned Justice of Peace has not passed a proper order by holding that no such incident has been committed. Learned counsel for the applicant has prayed that the applicant may be referred to the Civil Surgeon of Civil Hospital, Sukkur, for her medical checkup and also prayed for setting aside the impugned order with direction to concerned SHO for recording of her under section 154, Cr.P.C. In support of his contentions, he has relied statement(sic.) upon the cases reported as Mst. Sahib Khatoon v. SHO Police Station Garhi Khairo and 2 others (2013 PCr.LJ 749), Ghulam Fared v. SHO Police Station Sangi and another (2013 PCr.LJ 117) and Muhammad Hanif v. SHO Police Station N. Feroze and another (2013 PCr.LJ 449)
4. Conversely, Mr. Muhammad Sadiq Malik learned counsel for proposed accused while denying the allegations of applicant, has contended that the applicant has filed instant Criminal Miscellaneous Application on the false grounds as in the year 2010, the father of proposed accused namely Muhammad Anwar had purchased a residential plot from the father of applicant namely Muhammad Arab for the sum of Rs,90,000 and he also received entire sale consideration amount from the father of proposed accused in two instalments, but he kept the father of accused on false hopes and promises to hand over the possession of said plot, and now in order to usurp the sale consideration amount, the applicant has played such game and tried to involve the proposed accused in so-called offence. Learned counsel for the proposed accused prayed for dismissal of the instant Criminal Miscellaneous Application. In support of his contention, he has relied upon a case reported as Rai Ashraf and others v. Muhammad Saleem Bhatti and others (PLD 2010 SC 691).
5. Mr. Zulfiqar Ali Jatoi learned D.P.G has fully supported the contentions raised by the learned counsel for the applicant and submitted that there are serious allegations of commission of offence of rape by the proposed accused, therefore, SHO P.S. Concerned be directed to record the statement of applicant under section 154, Cr.P.C.
6. I have given my serious consideration to the submissions made by all the parties and have gone through the case-law cited by them.
7. At first hand it would be appropriate to discuss the case-law cited by the parties to establish their respective submissions.
8. In case of Mst. Sahib Khatoon (Supra), it has been held that before recording an F.I.R., SHO was not supposed to hold an enquiry as to the correctness or otherwise of the information, received by him for the purpose of being reduced in writing as F.I.R., SHO has no authority under the law to refuse recording of F.I.R., where information conveyed disclosed the commission of cognizable offence. In case of Ghulam Fareed (Supra), it has been held that the Station House Officer was bound to register an F.I.R. Under section 154, Cr.P.C., whether the information received by him was false or correct and whether any private or civil dispute between the parties was pending or not.
Station House Officer had no power to refuse to register the F.I.R., if the offence appeared to be cognizable from the information received by him. In case of Muhammad Hanif (Supra) it has been held that the SHO has absolutely no power to refuse to register the case if from the information/statement of complainant any cognizable offence was made out, whether information provided was false or correct was immaterial but the condition precedent for recording of F.I.R.
Under section 154, Cr.P.C. Was that information must disclose an offence and that too a cognizable one.
9.
10. #TBS
11. PCr.1.1
12. #TBE
13. In case of Rai Ashraf and others, (Supra) it has been held that each and every case is to be decided on its own peculiar facts and circumstances. Dispute between the parties was over such house. Applicant has secured restraint order against respondents from Civil Court and for its violation he had a remedy before a civil court. Applicant had an alternate remedy to file a private complaint against the respondents. Applicant had filed another application before Ex-Officio Justice of Peace/Additional Sessions Judge to restrain the functionary from taking regulations, further there under. Application for registration of F.I.R. Had been filed with mala fide intention, High Court had erred in not exercising discretion in favour of the applicant. Constitutional Petition was not maintainable and disputed question of fact could not be decided in constitutional jurisdiction.
Supreme Court set aside the impugned order in the circumstances. From the case-law referred supra, the proposed accused cannot take any benefit in his favour, as in present application no documentary proof regarding the alleged sale transaction of house in the year 2010 by the father of the applicant has been placed before the court nor any legal notice was issued by the father of the accused nor any suit has been filed against the father of the applicant after his denial to hand over the possession of alleged sold house, therefore, the specific facts of instant case are distinguishable from the case law referred supra by the counsel for the proposed accused.
10. From anxious perusal of record it has transpired that the learned Justice of Peace called report from the concerned SHO, and in his report the SHO has denied the commission of alleged offence considering the version of the proposed accused. The learned Justice of Peace considering the report of police being accurate and spotless dismissed the Criminal Miscellaneous Application of the applicant by a short order merely taking into consideration of police report vide impugned order with further direction to the applicant to file direct complaint before the court of having competent' jurisdiction in the matter. From the bare reading of the impugned order, it can be conveniently gathered that the learned Justice of Peace has neither considered the allegations made by the applicant in her application nor examined the relevant circumstances while dismissing said application hurriedly.
11. Under the scheme of criminal administration of justice, the Justice of Peace is not bound to depend upon and confine his authority to the extent of report furnished by the concerned police.
The prime duty of the Justice of Peace is to apply his judicial mind to examine all the relevant facts and prevailing circumstances narrated in the complaint by the aggrieved person independently and judiciously and shall not be convinced by the report submitted by the police. It is the legal assignment of the Justice of Peace to focus upon the prime question of controversy that whether or not any cognizable offence, prima facie, is made out from the contents of the complaint.
12. It is an unfortunate and painful aspect of our policing system that the aggrieved person suffers more hardships by running from pillar to post for lodging of F.I.R. With concerned police which otherwise is the first and mandatory step to get the machinery of the criminal justice system into motion. Under the provisions of sections 154 and 155, Cr.P.C., the SHO could not deprive the aggrieved person by considering the version of proposed accused to be more trustworthy than the initial complaint of the victim, and concluding the entire high-handedness of aggressor being innocent without lodging of F.I.R., recording of statements of witnesses of the incident and conducting the thorough investigations of the alleged offence within the prescribed parameters of FB investigation in accordance with the law.
13. In the present application, the applicant lady at first hand approached the SHO concerned for lodging of F.I.R. But her report was not lodged by said SHO although he was duty bound to incorporate her complaint in her verbatim, even the application moved by her father to DIGP Sukkur also remained fruitless. The applicant in her application filed before the Justice of Peace has categorically stated that on the day of the incident, when she was alone in her house, the proposed accused along with his two companions duly armed with pistol entered into her house and committed rape with her forcibly, but the learned Justice of Peace has not considered these serious allegations, and without passing any proper order and furnishing the valid reasons in support of his verdict, has declined application of the applicant ignoring the main aspect of the complaint and wherefrom a cognizable offence prime facie is made out.
14. Resultantly, I am of the considered view that the Justice of Peace has committed serious error while passing impugned order dated: 7-8-2013, which is hereby set aside and instant Criminal Miscellaneous Application stand allowed as prayed. Consequently, SHO Police Station Khambhra is directed to record statement of the applicant under section 154, Cr.P.C. In her verbatim and thereafter she immediately be produced before the MLO of District Hospital, Ghotki for her medical examination, and if any cognizable offence is made out, he shall proceed further in accordance with the law.