SYED SAEED UDDIN NASIR, J.---Through this constitutional petition, the petitioner has impugned the validity of order dated 6-11-2014 whereby an Application under section 22-A, Cr.P.C. Was declined by the Ex-officio Justice of Peace/IIIrd Additional Sessions Judge, Khairpur, whereby her prayer for issuance of direction to the concerned Station House Officer for registration of FIR against the nominated accused, has been dismissed.
2. The brief facts of the case are that on 28-7-2014, the petitioner along with her sons Muhammad Usman, Bakhshan Khan and daughters Mst. Bhagul and Mst. Amna was going to Dargah Gambal Shah by a Rickshaw, which was driven by her son Muhammad Usman. It was about 8 a.m., that they reached on road of Dargah Gambal Shah at dates orchard and one white colour Datsun came behind them and crossed and stopped at little distance, from which eight armed persons alighted and she recognized/identified them as SHO Sarwar Dreho armed with KK Riaz Solangi armed with KK, Ghulam Qadir Shar armed with KK Jhangal alias Gulan, Kousar, Gullan, armed with TT pistols and two unknown accused armed with repeaters shotguns and they stopped petitioner party. Then all accused made aerial firing in front of them for creating terror and harassment.
Accused Sarwar Dreho asked her son Muhammad Usman to give him Rs,1,00,000 to which the complainant replied that they are poor people and could not pay such a heavy amount, upon which accused SHO Sarwar Dreho inflicted butt blow with his KK to her son Muhammad Usman on his right eye. He cried and fell down. Accused Sarwar Dreho and other accused persons caught hold of his son Muhammad Usman and put him in the Datsun and also took her and his sons Bakshan Khan in same Datsun and confined them at some unknown place in a house. On 31-7- 2014, accused SHO Sarwar Dreho removed them out of the room where all the accused surrounded them, who were duly armed with weapons, and accused SHO Sarwar Dreho asked her son Muhammad Usman to pay an amount of Rs,100,000 to which he refused. Then accused Sarwar Dreho became annoyed and he ordered accused Riaz Solangi and Ghulam Qadir Shar to hold her son Muhammad Usman from arms and then accused SHO Ghulam Sarwar with intent to commit murder opened direct fire of KK upon her son Muhammad Usman, who fell down and raised cries and died there in the presence of petitioner. It is further disclosed in the application that on 24-9- 2014 at 4 p.m. Accused set at liberty the petitioner party after extending threats to them not to complain about the incident to anyone. After the incident, petitioner approached before the SHO PS concerned for lodging FIR but he did not record FIR. Thereafter, the petitioner filed Application No,2164 of 2014 before the Ex-officio Justice of Peace/Additional Sessions Judge-III, Khairpur under section 22-A and B, Cr.P.C. Of registration of FIR of the aforesaid incident, who without appreciating the gravity of offence and its cognizable nature dismissed the same on 6-11-2014 without assigning any cogent reasons.
3. The learned counsel for the petitioner, inter alia contends that the impugned order passed by the learned IIIrd Additional Sessions Judge/Justice of Peace is not a speaking order and that he should have directed the SHO concerned to record the statement of the petitioner, and if any case of a cognizable nature was made out, the SHO should have registered the case. The learned counsel in support of his arguments has relied upon Ghulam Fareed v. Station House Officer, Police Station, Sangi and another (2011 PCr.LJ 117), Allah Bakhsh v. Station House Officer and another (2013 MLD 885) and Muhammad Bashir v. Station House Officer, Okara Cantt, and others (PLD 2007 Supreme Court 539). In first two case laws relied upon by the learned counsel for the petitioner, it is held that when the cognizable offence is made out, the duty of the Justice of Peace, in such circumstances, is to give directions for registration of FIR and in the last case law it is held by the honourable Supreme Court that section 22-A(6), Cr.P.C. The powers conferred upon the Ex-officio Justice of Peace are 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, and offering any other interpretation to section 22- A(6), Cr.P.C. Would be doing violence to the entire scheme of Criminal Procedure Code, 1898 which could not be permitted under the law.
4. The learned Assistant A.G. Appearing for the State has supported the impugned order and stated that there is nothing wrong with the same and if at-all the petitioner is aggrieved by the same, the proper course for her is to file a private complaint to get her FIR registered.
5. I have heard the arguments extended by the learned counsel for the parties and appreciated the case law as well as the impugned order and other material available on the record of the case.
6. Upon perusal of the same it becomes crystal clear that the learned IIIrd Additional Sessions Judge/Ex-officio Justice of Peace, Khairpur has mainly relied upon the statement made by the police with regard to the notorious criminal record of the petitioner's son and has not passed the speaking order. The course adopted by the learned Justice of Peace is patently against the norms and settled principles of law, therefore, I fully agree with the arguments extended by the learned counsel for the petitioner that the provisions as contemplated by section 22-A(6), Cr.P.C. Have not been complied with by learned Justice of Peace while passing the impugned order. The learned Justice of Peace was bound to give directions to the concerned Station House Office:, where such an officer, despite applicant's request or approach, has refuted to lodge an FIR in respect of some cognizable offence, which has been alleged before him by the complainant. Upon a direction issued by the Justice of Peace as stated above, the concerned Station House Officer would be bound to register FIR under section 154, Cr.P.C., regardless whether information received by him is false or correct and shall have no power to refuse to register the same if the offence appears to be cognizable from the information received by him. The concerned Station House Officer shall be failing in his duty if an FIR is not registered by him, if a cognizable offence is made out or if he does not comply with the directions issued in this behalf by the Justice of Peace. In the Application under section 22-A, Cr.P.C. Before Justice of Peace, the applicant has raised a specific allegation against the proposed accused that they had committed murder of the son of the petitioner, the learned Justice of Peace instead of dealing with main and basic question in the impugned order that as to whether the information disclosed before him by the applicant did or not did not constitute a cognizable offence, and whether concerned Station House Officer malafidely refused to register her complaint despite her request, has dismissed the application under section 22-A, Cr.P.C. Filed by the petitioner before the Ex-officio Justice of Peace without assigning any reasons whatsoever for doing so. The learned Justice of Peace has mainly relied upon the. Report dated 31-7-2014 filed by the SHO Police Station Kotdiji wherein the said SHO has stated that the son of the petitioner was involved in a number of criminal cases and that he was killed in an encounter with the Police party while committing a crime. On the basis of such report, the learned Justice of Peace found no substance in the application under section 22-A and B, of the Code of Criminal Procedure, 1898 filed by the present petitioner before him for registration of a criminal case against the proposed accused. In my view the learned Justice of Peace has erred seriously in law by acting upon the report submitted by the SHO Kotdiji and, decided/dismissed the application of the petitioner before him on the basis of the said report and not on the basis of the incident narrated and allegations categorically made by the petitioner in the application. The manner in which the application of the petitioner was dealt with by the learned Justice of Peace manifests that the contents of the application were not even examined by him in order to determine as to whether or not any cognizable offence had been made out from the facts narrated in the application by the petitioner.
The Justice of Peace was duty-bound to determine the existence of a cognizable offence without going into the question of credibility of the information in question without calling for any comments/report from the SHO. I am fortified in my view by the cases of Bashir and Ghulam Fareed (supra).
7. The EXTRA JUDICIAL WILLING of an individual of the State at the hands of the Police cannot at-all be justified on account of the fact that said deceased was involved in a number of criminal cases.
That is what the learned Justice of Peace has done in the impugned order and has observed in the last para that according to the report submitted by the SHO the deceased was absconder in many cases therefore, this application under section 22-A and B, Cr.P.C. Is without any substance, and dismissed the same.
8. In view of the above, I am of the opinion that the impugned order suffers from infirmity and is not a speaking order as no valid reason has been mentioned therein in order to show that the prayer made by the applicant was declined after proper application of mind and legal principles and appreciation of material available on record.
9. Section 154, Cr.P.C. Leave no discretion with the police officer in charge of the Police Station to avoid lodging the FIR, if by nature of fasts stated before him, it transpires that a cognizable offence has been committed, therefore, it is the legal right of every informant to get FIR registered in case of a cognizable offence if it has been committed.
10. In view of the above, this petition is allowed and the order dated 6-11-2014 is set aside, the concerned SHO is hereby directed to record the statement of the petitioner, and if such statement reflects that ingredients of cognizable offence are available to register the FIR against the proposed accused persons, he shall register an FIR against them.
11. The statement filed by SHO Police Station, Kotdiji is taken on record.
12. In view above instant constitutional petition stands disposed of.