' AQEEL AHMED ABBASI, J.---Being aggrieved and dissatisfied by the order dated 29-10-2013, passed by the learned Vth Additional Sessions Judge/Exofficio Justice of Peace, Larkana in Criminal Miscellaneous Application No,665 of 2013, whereby the application filed by the applicant under sections 22-A and 22-B, Cr.P.C. For registration of FIR against the proposed accused persons was dismissed, the applicant has filed instant Criminal Miscellaneous Application under section 561-A, Cr.P.C. With the prayer to set aside the impugned order and direct the concerned SHO to lodge an FIR against the proposed accused persons.
2. Brief facts as stated by the applicant are that on 6-10-2013, the applicant along with one Muhammad Nawaz and Faiz Muhammad went to look after his lands i,e, S.Nos.358 and 346, deh Dodai, when at about 10:30 a.m., they reached there, they saw accused persons namely Liaquat Ali son of Muhkumdin Sangi, Irfan Ali son of Muhukumdin, Mutthar son of Liaquat Ali Sangi all resident of Surahiya Padhar, Larkana having T.T. Pistols in their hands, Rasool Bux son of unknown Umrani having K.Ks, who were busy in taking mud and de-boarding the same on Tractor-Trolley from the lands of the applicant. The applicant restrained the proposed accused persons from causing damage to the property on which they got annoyed and proposed accused Liaquat Ali said that they will occupy the land of the applicant and at the same time accused Mutahar Ali and Irfan Ali fired upon the applicant with intention to commit murder. The applicant party being empty handed took shelter behind Sim Drain and as such fire did not hit them. Thereafter, all accused persons while extending threats went away in the Tractor Trolley by making aerial firing with a view to cause harassm ent. The applicant approached the respondent No,1 for lodging of FIR, however, the respondent No,1, while keeping him on false hopes, did not register the case against proposed accused persons. Since the FIR was not registered by the police of the alleged incidence, the applicant filed an application under sections 22-A and 22-B, Cr.P.C. Before the learned Vth Additional Sessions Judge/ Ex-Officio Justice of Peace Larkana, who vide impugned order dated 29-10-2013 dismissed such application, hence instant Cr 1 . Misc. Application has been filed by the applicant under section 561-A, Cr.P.C.
3. Learned counsel for the applicant has contended that the learned Vth Additional Sessions Judge/Ex-Officio Justice of Peace, Larkana has erred in law and facts by not issuing directions to the concerned SHO to register the FIR against the proposed accused persons as a cognizable offence was reported by the applicant. Per learned counsel, it was the duty of the concerned SHO to register the FIR of the applicant against the proposed accused persons who were digging mud from the lands of the applicant and on his restraining them, the proposed accused fired upon the applicant which fortunately did not hit him as he took shelter behind the trees. Similarly, per learned counsel, the learned Vth Additional Sessions Judge/ExOfficio Justice of Peace Larkana has also erred in law by dismissing the application under sections 22-A and 22-B, Cr.P.C. Filed by the applicant, who reported a cognizable offence. It is further contended by the learned counsel that it is duty of the learned Ex-Officio Justice of Peace to direct registration of the FIR if a cognizable offence is reported, without examining its correctness as the same can only be examined after trial of the case. Per learned counsel, the concerned SHO and learned Vth Additional Sessions Judge/Justice of Peace Larkana have no authority to examine truthfulness of the allegations and duty bound to register the FIR without ascertaining the correctness of the incidence as may be reported by the complainant, whereas, they are required to merely examine as to whether any cognizable offence is reported or not. In support of his contention, the learned counsel for the applicant has placed reliance on the following case-laws:
(i) Mrs. Ghanwa Bhutto and another v. Government of Sindh and another PLD 1997 Karachi 119.
(ii) Mst. Bhaitan v. The State and 3 others PLD 2005 Karachi 621.
(iii) Muhammad Bashir v. Station House Officer, Okara Cantt and others PLD 2007 Supreme Court 539.
(iv) Mst. Shahzadi v. The State and another PLD 2011 Quetta 32.
4. Conversely, the learned counsel for proposed accused persons has controverted the submissions made by the counsel for the applicant and submits that instant Criminal Miscellaneous Application is misconceived in law and facts and the same is liable to be dismissed as the applicant could not point out any error or illegality in the impugned order. Per learned counsel, the impugned order has been passed by the learned Vth Additional Sessions Judge/Ex- Officio Justice of Peace, Larkana while exercising proper discretion as vested in him under sections 22-A and 22-B, Cr.P.C. Per learned counsel, the applicant never approached the concerned SHO for registration of FIR such incidence did not take place, whereas, the applicant himself is required in a crime i,e, FIR No,50/2011 which was got registered by the respondent against the applicant Altaf Hussain Saryo, and also filed a harassment' petition C.P. No,S-1632/2011 in respect of subject land in retaliation and hence, the applicant as a counter blast has concocted the aforesaid false story just to pressurize the respondent to withdraw from the aforesaid cases. It is further contended by the learned counsel that on the face of record, the allegations levelled by the applicant against the proposed accused persons are patently false, frivolous and contrary to the record as neither the applicant is owner nor he has ever been remained in possession of the subject land. On the contrary, per learned counsel, a Constitutional Petition as referred to hereinabove was filed by the respondent against the present applicant and others with the prayer to restrain the applicant from interfering in the peaceful possession of the subject land as it belongs to the proposed accused.
Per learned counsel, the present applicant filed comments in the said petition and categorically stated that he will not make any interference or will cause any harassment to the respondents in respect of the subject property. It has been contended by the learned counsel that the allegations are false and contrary to the record, whereas, the applicant never approached the concerned SHO to report any cognizable offence and instead he has chosen to file an application under sections 22-A and 22-B, Cr.P.C. Before the learned Vth Additional Sessions Judge/ Ex-Officio Justice of Peace, Larkana on 14-10-2013, after the delay of about eight days which has not been explained. Per learned counsel since the basic allegation of ' the applicant with regard to the ownership and possession over the subject land palpably was false, whereas nothing was produced before the learned Vth Additional Sessions Judge/Ex-Officio Justice of Peace, Larkana to support the allegations, therefore, the remaining allegations are equally false and no officer of prudent mind or the Court could believe the concocted story of the complainant under the facts and circumstances of this case. It is further submitted by the learned counsel for proposed accused that on the contrary, sufficient material was produced before the learned Additional Sessions Judge/ExOfficio Justice of Peace, Larkana in respect of ownership and possession of the proposed accused persons over the subject land, as well as the judicial record of previous litigation between the parties in respect of subject land which clearly established that the alleged incidence never took place, whereas, the applicant has concocted a false story to drag the proposed accused persons in a criminal case only to cause injury and humiliation to their reputation, who are respectable citizens. Per learned counsel, though the allegations on the face of record are palpably false and frivolous, however, the complainant could have filed direct complaint under section 200, Cr.P.C. Before the same learned Judge, who after having recorded the statement of the complainant and recording the evidence, if any, could pass appropriate orders in accordance with law, which has not been done by the applicant in the instant case. It is further contended by the learned counsel that the office of SHO or the Court of Vth Additional Sessions Judge/Ex-Officio Justice of Peace is not merely a post office who would simply take dictation and register the FIR without applying his prudent mind and without ascertaining at least the prima facie truthfulness or basis of the allegations which may be reported by the complainant. Per learned counsel, this approach may lead to registration of number of false and frivolous FIRs against innocent persons and which will multiply the frivolous litigation before the Courts and shall be used by the police as a tool to involve the innocent persons in false cases at the behest of unscrupulous litigants. Learned counsel further submits that in order to exert pressure upon the litigant party in a civil matter registration of false FIRs has also become the order of the day, which is required to be curbed by the police/Justice of Peace and so also by this Court in appropriate cases. Learned counsel submits that impugned order is well reasoned and self explanatory and does not suffer from any error or illegality, whereas, the discretion vested in the Additional Sessions Judge/Ex-Officio Justice of Peace, Larkana under sections 22-A and 22-B, Cr.P.C. Has been properly exercised in the instant case. It has been submitted by the learned counsel that the impugned order does not require any interference whereas, instant Criminal Miscellaneous Application is devoid of any merits, hence, the same is liable to be dismissed. Per learned counsel, the case-law as relied upon by the learned counsel for the applicant is not applicable to the facts of this case. In support of his contention, the learned counsel has relied upon the following case-law:-- ' Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 Supreme Court 691.
5. Learned A.P.G has also supported the contention made by the learned counsel for proposed accused persons and submits that the impugned order does not suffer from any error or illegality whereas discretion vested in the learned Sessions Judge/Justice of Peace, Larkana has been properly exercised. It has been stated that there is admitted civil litigation between the parties in respect of subject land, whereas, the applicant did not produce any documents with regard to his ownership or possession over the subject land, on which the alleged incidence took place, hence the entire story of the applicant on the basis of record palpably is false and frivolous and since no cognizable offence was reported, therefore, the learned Vth Additional Sessions Judge/Ex-Officio Justice of Peace was justified in dismissing the application of the applicant filed under sections 22- A and 22-B, Cr.P.C. It has been further submitted by the learned counsel A.P.G. That provisions of sections 22-A & 22-B, Cr.P.C. Are being misused by the litigating parties as well as by the Police who involve innocent persons in false cases mostly by converting civil disputes into criminal disputes to exert pressure and to abuse process of law, which tendency may be curbed at initial stage.
6. I have heard both the learned counsel for the parties as well as learned A.P.G.; perused the record and the impugned order passed by the learned Vth Additional Sessions Judge/Ex-Officio Justice of Peace, Larkana. The applicant, through instant Criminal Miscellaneous Application has impugned the order passed by the learned Vth Additional Sessions Judge/Ex-Officio Justice of Peace, Larkana in Criminal Miscellaneous Application No,665/2013, whereby, the application filed by the applicant under sections 22-A and 22-B, Cr.P.C. For registration of an FIR against proposed accused persons has been dismissed. While declining to pass order for registration of FIR against the proposed accused persons, the learned Judge took cognizance of the material placed on record, particularly, the documents of title and comments filed by the concerned Mukhtiarkar in respect of subject land on which alleged incidence took place which prima facie reflected that the applicant is neither the owner nor was in possession of such land, hence formed an opinion that the allegation as reported do not suggest commission of an offence cognizable by police. It is pertinent to note that while passing the impugned order the learned Vth Additional Sessions Judge/ExOfficio Justice of Peace, Larkana was pleased to issue notice to the concerned SHO requiring his comments about the alleged incidence, who in turn, submitted his report wherein it was stated that no such incidence had taken place within the jurisdiction of his police station whereas, the applicant did not approach at the police station to report such incidence on the fateful day. It is also pertinent to note that before Vth Additional Sessions Judge/ExOfficio Justice of Peace, Larkana the applicant did not file any documentary evidence with regard to his ownership or possession over the subject land on which the alleged incidence took place. On the contrary, the respondent filed the title document and also placed the copies of the proceedings and the orders passed by this Court in Constitutional Petition No,S-163/ 2012 and Constitutional Petition No,D-388/ 2012 as well as copy of an FIR No,50/2011 which was got registered by the respondent against the present applicant in respect of same subject land. Respondent also referred to the report of the Mukhtiarkar concerned establishing the ownership of the respondent over the subject land.
Keeping in view the hereinabove peculiar facts and circumstances of the case, the learned Judge was pleased to form an opinion that the applicant could not make out a case requiring registration of an FIR against the proposed accused persons.
7. There is no cavil to the legal position that if an offence is reported to concerned SHO, it is his duty to record the same and if a cognizable offence is made out, to register an FIR under section 154, Cr.P.C. However, on receiving such complaint it is the prerogative of the concerned SHO to form an opinion as to whether a cognizable offence is made out or not, whereas, in non-cognizable cases, the concerned SHO is not obliged to register an FIR and to arrest the person(s) nominated therein unnecessarily, in order to avoid abuse of the process of the law. The facts as emerged from record reflect that the applicant did not report the_ alleged incidence nor approached- the concerned SHO on the fateful day for registration of FIR whereas he has chosen to approach the learned Vth Additional Sessions Judge/ExOfficio Justice of Peace, Larkana by filing an application under sections 22-A and 22-B, Cr.P.C. After lapse of about 08 days from the date of alleged incidence. No explanation has been given by the applicant for such delay nor the applicant even produced the alleged eye-witnesses of the incidence before the learned Justice of Peace. Even before this Court the learned counsel for the applicant did not produce any material which could somehow support the allegations or suggest commission of any cognizable offence.
8. It may be observed that each and every case is to be examined and decided on its own peculiar facts and circumstances, particularly a criminal case, which otherwise requires stringent burden of proof to establish commission of a cognizable offence. It may be further observed that if a complainant reports an incidence to the concerned SHO it is his duty as an officer of prudent mind to examine as to whether commission of a cognizable offence is made out or not. Though the SHO is not required to examine the evidence or the truthfulness of the alleged offence however, he cannot in a mechanical manner without applying his mind at least to the extent of examining the occurrence of the alleged incidence or commission of a cognizable offence, may register an FIR in every case which may not even suggest commission of a cognizable offence. In the case of Dr. Babar Hussain v. SHO City Courts, Karachi reported as 2013 PCr.LJ 1002, this Court, placing reliance on the judgment of the Hon'ble Supreme Court in the case of Rai Ashraf and others v. Muhammad Saleem Bhatti and others reported as PLD 2010 SC 691, and after having taken cognizance of somewhat similar facts and circumstances of the case, held as under:-- "11. This Court is cognizant of the legal position, that if an offence is reported by the complainant to the concerned SHO, it is his duty to record the statement of complainant and if a cognizable offence is made out, to register an FIR under section 154, Cr.P.C. Against the accused person(s) nominated therein. However, on receiving such complaint, it is the prerogative of the concerned SHO to form an opinion as to whether a cognizable offence is made out or not, whereas in non- cognizable cases the concerned SHO is not obliged to register an FIR and to drag the person(s) nominated therein unnecessarily in order to avoid the abuse of process of law".
"14. In the case of Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 Supreme Court 691, the Hon'ble Supreme Court while dilating upon the scope of sections 22-A, 22-B, 54 and 200, Cr.P.C. Has held as under:-- "(5) We have given our anxious consideration to the contentions of learned counsel for the parties and have perused the record. It is a settled law that each and every case is to be decided on its own peculiar facts and circumstances as law laid down by this Court in Muhammad Saleem's case 1994 SCMR 2213 and Mushtaq Ahmed's case PLD 1973 SC 418. The relevant observations in Mushtaq Ahmed's case supra is as follows:- "Everything said in a judgment and more particularly in a judgment in a criminal case must be understood with great particularity as having been said with reference to the facts of that particular case."
(6) It is admitted fact that petitioners have alternate remedies to file private complaint before the Competent Court, therefore, constitutional petition was not maintainable and the High Court has erred in law to send the copy of the writ petition to the SHO concerned. The direction of the High Court is not in consonance with the law laid down by this Court in Jamshaid Ahmed's case (1975 SCMR 149). It is also a settled law that the learned High Court has no jurisdiction whatsoever to decide the disputed questions of fact in constitutional jurisdiction."
Further reference in this regard can be made to the case of Muhammad Shabir v. SHO Okara Cantt.
And others PLD 2007 SC 539, Syed All Shah v. State 2010 MLD 1892 and Nazir Ahmed v. ASJ and others 2011 PCr.LJ 396. The case-law relied upon D by the learned counsel for the applicant is not applicable to the facts and circumstances of this case which are distinguishable.
9. In view of hereinabove facts and circumstances of this case and by applying the ratio of aforesaid judgments, I am of the opinion that the applicant has not been able to point out any error or illegality in the impugned order passed by the learned Vth Additional Sessions Judge/Ex- Officio Justice of Peace, Larkana, who has exercised Administrative discretion vested in him under section 22-A, Cr.P.C. Fairly and in good faith. This Court is not persuaded to interfere in the lawful exercise of jurisdiction and the discretion vested in the learned Vth Additional Sessions Judge/Justice of Peace, Larkana, under sections 22-A and 22-B, Cr.P.C.
' Accordingly, instant Criminal Miscellaneous Application being devoid of any merit is hereby dismissed.