' HASAN FEROZ, J.---The instant Criminal Misc. Application No.295 of 2014 preferred under section 561-A, Cr.P.C. On behalf of the applicant, seeking therein to set-aside the impugned order dated 20.09.2014 passed by the learned Sessions Judge/ Ex-Officio Justice of Peace, Karachi (East) on Application under section 22-A, Cr.P.C. Seeking registration of FIR against the proposed accused but learned Sessions Judge passed the order for inquiry through SSP. Applicant prefers instant Misc. Application to consider its irregularity and illegality.
2. The brief facts as contained by applicant are that on 09.09.2014 at about 8-00 p.m. Four police officials in mobile in civil dress along with applicant son's ex-wife namely Madiha Sajid and her new husband namely Sunny came at the shop No.4 of the applicant situated at AlManzar Apartment, Near Lasbella Traffic police Chowki, Lasbella, Karachi and inquired about his son namely Muhammad Shoaib Khan the applicant told them that his son gone to purchase vehicle spare parts upon which they used filthy language and asked immediately call him and when the applicant's son came at the shop they forcibly took him away, the applicant searched his son whole night but all in vain. On 10.09.2014 at about 09-00 a.m the applicant received call on his mobile No. 0300-2187077 from mobile No. 0300-2234386, the caller said that applicant's son Shoaib at Police Station Mithadar, contact at P.S Mithadar, the applicant alleged that immediately he rushed at P.S Mithadar along with his elder brother Muhammad Abid Khan, son-in-law Shamshad and nephew Waqas Alam and Zohaib Alam and meet with ASI Kashif who introduced us to SHO Tariq Baig and demanded Rs.10,00,000/- for release of the applicant's son otherwise his son would be involved in terrorism case. It is further alleged that the applicant requested SHO Tariq Baig that he could not arrange huge amount then they (SHO Tariq Baig & ASI Kashif) said that pay Rs.
1,50,000/- the applicant in very difficult condition arranged Rs. 1,50,000/- and paid to SHO Tariq Baig and ASI Kashif at PS Mithadar then they released the applicant's son Shoaib in very bad condition on 11.09.2014 at midnight, the applicant son Shoaib told him that they (SHO Tariq Baig and ASI Kashif) mercilessly beaten him. It is further alleged that one private Hospital Mam Jee Hospital refused to admit the applicant's son then the applicant reached at Abbasi Shaheed Hospital where they also could not get medical and without police letter thus unable to give treatment to the son of the applicant.
It is further averred that on 11.09.2014 the applicant reached at CPLC who after seeing the condition of applicant's son Shoaib given police letter then the applicant went to Abbasi Shaheed Hospital on 12.09.2014 and Dr. Pervez Anwar Khan got examined the applicant's son namely Shoaib and prepared ML No. 6621/2014.
That thereafter the applicant made effort to deliver application to the Respondent No.1 but could not succeeded hence the applicant sent application to the respondent No.1/SHO through TCS.
It has been contended before the learned Ex-Officio Justice of Peace/Sessions Judge Karachi East, that the respondent is avoiding to lodge the FIR and take legal action against the said accused/culprit and giving him undue favour though he is legally duty bound to protect the applicant and take legal action after lodging the FIR, but the respondent is under the influence of the accused party and avoiding to perform his duty.
3. I have heard the learned counsel for the applicant who has contended that the impugned order is not sustainable under the law and the learned Judge failed to apply correct preposition of law which is passed merely on the basis of conjunctures and surmises, hence liable to be set aside.
That the learned Judge did not consider the case law tendered by the counsel of the applicant/complainant which hit the provision of Article 201 of the Constitution of the Islamic Republic of Pakistan, 1973. That the plethora of case laws held that it is unnecessary to call upon or to notice the proposed accused while deciding application under section 22-A, Cr.P.C. As held in 2014 PCr.LJ page 1347.
4. Learned counsel has further contended that the applicant filed application under section 22-A, Cr.P.C. For registration of FIR and the learned Ex-Officio Justice of Peace have jurisdiction to direct the police for registration of FIR and if the learned Court is of the opinion that no cognizable offence made out, then the application will not stand therefore, the impugned order of holding enquiry by SP too had not been given any heed by police is liable to be set aside. Learned counsel further contended that it is settled law while inquiring into the matter the learned judge was required to pass appropriate order according to essence of section 22-A, Cr.P.C. Against public servant as such impugned order has been passed by the learned Sessions Judge against settled law hence cannot sustained in view of citations relied.
1. 2013 P.Cr.L.J (Sindh) 449(b), 2. 2013 P.Cr.L.J (Sindh) 117
3. 2013 P.Cr.L.J (Sindh) 100,
4. PLD 2007 SC 539,
5. I have also heard the learned APG who has opposed the application.
6. I am conscious about the fact that this Court is seized with the powers under section 561-A, Cr.P.C. Whereby this Court has ample powers to meet the ends of justice however the same is to be exercised subject to law and not to bypass the express provisions of law. The powers under section 561-A, Cr.P.C. Are to be exercised in order to prevent the abuse of process of law and to meet the ends of justice and such powers being extraordinary in nature are to be exercised in the circumstances when no other remedy under the law is available. The provisions of the section cannot be used to override the express provisions of law as a substitute to the available remedy to circumvent the normal course of law or to deviate from prescribed procedure of law which in all circumstances ought to take effect.
7. The perusal of record shows that in spite of direction to the learned Sessions Judge/Ex-Officio Justice of Peace no heed has been paid by the police to furnish report as to the alleged incident and the matter is still pending with the learned Sessions Judge, is required to be disposed of in terms of section 22-A, Cr.P.C. On assessment of material before him which requires no report prior to lodging of FIR from police and in that regard matter is remanded to learned Sessions Judge/Ex- Officio Justice of Peace with direction to pass appropriate order in accordance with law.