FAHIM AHMED SIDDIQUI, J.---The appellant has challenged the judgment dated 26.12.2014, whereby the learned Judicial Magistrate-I, Karachi Central acquitted respondent from the charge under section 182 of P.P.C. (giving false information to public servant). The appellant is one of the accused against whom the FIR was lodged by the respondent, which was later on disposed of under B-class.
2. Allegedly, Respondent has given false information in shape of FIR to Sub-Inspector Abdul Hameed of police station Shara-e-Noor Jehan, who filed Kalandra (report of complaint) to the concerned Judicial Magistrate with a recommendation to take action. It is mentioned in the report that the respondent lodged a FIR, regarding which he could not produce evidence, and during the investigation, no independent evidence could be collected by him in support of the version of FIR.
After the investigation, the said FIR was disposed of in "B" class (false).
3. The learned counsel for the appellant argued the matter at length. After describing the entire background of the case, he made submissions regarding factual and legal aspects of the case.
According to him, the learned trial judge could not appreciate documentary as well as oral evidence produced before him. He pointed out that on account of some irregularity, the appellant filed an application under section 540, Cr.P.C. for recalling PW Abdul Hameed, who in re- examination admitted that he had issued a notice to respondent and produce the same. He submitted that there is no rebuttal from Respondent regarding receiving of notice in respect of initiating proceedings against him under section 1/2, P.P.C. According to him, there is documentary evidence, and the burden was shifted to respondent to establish that the FIR is false. He submitted that the concerned magistrate accepted the report under B-class and the respondent did not challenge the said order as such the same attained finality. He submitted that the falsification of reports so lodged by the respondent could not be denied, but the learned trial magistrate did not consider this aspect.
4. The learned counsel for respondent while opposing the instant appeal emphasised upon the non-receiving of any notice from the concerned police officer. He also denied of receiving any notice regarding the production of witnesses during the investigation. He supported the impugned judgment by submitting that the learned magistrate has dilated upon all the aspects of the case and his judgment is speaking in which every detail has been discussed. He submitted that PW Abdul Hameed admitted in cross-examination that he had demanded Rs,50,000/-and after making it a great point he submitted that the entire case was made because of illegal gratification offered by the appellant to police.
5. The learned counsel for the appellant in rebuttal submitted that the words of Rs, 50,000/- may come in the deposition on account of typographical mistake as Abdul Hameed was not the Investigation officer of the case, but he was only the author of FIR. If it is so, then it means that he had taken a bribe for lodging a false FIR.
6. The learned APG adopted the arguments advanced by the learned counsel for appellant and demanded conviction for respondent for lodging false FIR.
7. After giving audience to the arguments advanced before me, I have gone through the entire material placed before me. The concerned police officer filed a complaint under section 182 of P.P.C., which was registered as a criminal case. It is apparent that the parties involved in the instant matter are antagonistic on account of family and matrimonial dispute. It has come on the record that the parties are well acquainted with each other for last so many years, and allegedly the respondent persuaded the sister of appellant to enter into marital bond with him. The marriage was solemnized under free-will which was certainly not accepted wholeheartedly by the appellant's family. The relations between the respondent and his wife became strained after some time which multiplied the tension between appellant and his in-laws. In Me backdrop of this position of affairs, the respondent lodged the above-mentioned FIR against the appellant.
8. As mentioned earlier, the concerned police officer reported to the learned magistrate that the FIR lodged by the respondent had been disposed of in "B" class, hence he recommended for the trial of respondent as accused under the provision of section 182, P.P.C. The submission of the report under 'A', 'B' and 'C' classes is a unique practice in the province of Sindh. In other parts of the country, a Kalandra is filed by the police before concerned Magistrate with a request, for disposal of FIR without taking cognizance on the ground mentioned therein. It is usually known as a negative police report. This unique practice in Sindh is dating back to the era when Sindh was the part of Bombay Presidency. At that time, there was a handbook for Bombay Police known as the 'Bombay Presidency Police Guide'. According to the 'Bombay Presidency Police Guide', report of investigation under section 173, Cr.P.C., is to be filed either in the form of a charge-sheet, if the accused is sent for trial, or in other cases in the form of a Final Report in A, B or C-classes. A report under A-Class is filed for those cases which are true, but the accused is yet not traceable i,e, his name and address are still not known. Similarly, reports under B-Class pertains to those cases which are 'maliciously false cases', and cases under 'C-Class are those which are intended to be disposed of as cancelled because they are neither true nor maliciously false but lodged due to some mistake or the case is non-cognizable. This scheme was chalked out with an intention that in every case within the stipulated time some report should be reached to the Magistrate so that he must be aware of the progress by police in each criminal case. It is the duty of the Magistrate to apply his mind before giving permission to police for disposal of a case in any of the classes mentioned above. In this way, there remained no pending case with police except those which are under investigation. A case so disposed of cannot be reopened without the permission of magistrate, so that innocent people may not suffer under the mastodontic authority of police in a pending case. It was an effort of somewhat transparency of policing activities, and the same practice is still continued in the province of Sindh.
9. In the instant matter, FIR was disposed of in "B" class, and after that, a report was submitted to the Magistrate. The Magistrate has decided the case on merit and came to a conclusion that charge against the accused was not proved. The same Magistrate had earlier accepted the report submitted by police under "B" class, but after trial, he formed a definite conclusion that enough evidence is not available to declare that the FIR was maliciously false. In this respect, report submitted by the police with the magistrate with a request for the trial under section 182, P.P.C. is also meaningful. It is said in the report that neither accused could produce evidence nor he could collect independent evidence in support of the incident. I am of the view, that non-collecting evidence in support of the incident itself is not sufficient to declare that the incident is 'maliciously false'. In fact, it is the duty of the police to collect 'some positive evidence' either in support of the incident or in the negation of the same. If some concrete evidence were collected by the police to negate the happening of the incident, then it would be said that the reported incident was 'maliciously false'.
10. The appellant is one of the nominated accused in the FIR lodged by respondent. The appellant has taken part in the proceedings before the trial court, and he has challenged the judgment of the learned Judicial Magistrate before this Court. It is evident from the language of section 182, P.P.C. that the aggrieved party having right to initiate a proceeding under section 182, P.P.C. is the officer who faced hardship and inconvenience due to a complaint, which was subsequently proved false.
The legislature has not given any authority or power to initiate a proceeding under section 182, P.P.C. to a nominated accused of the false and fabricated FIR. There are other remedies available to a nominated accused of such FIR, and he has every right to initiate those proceedings for malicious prosecution, but he has no right to enter into a proceeding initiated by a police officer under section 182, P.P.C. even at the appellate stage as the appeal is continuity of the original proceeding. In this respect, I would take reliance from a case of this Court reported as Muhammad Ibrahim v. Umaid Ali and 4 others (2016 M LD 346).
11. Another aspect of the case is important, which is regarding lodging of FIR. The FIR was lodged under the directions of Ex-Officio Justice of Peace and at the time of issuing direction, the learned Justice of Peace had given direction to police that if the FIR is lodged and the same is found false, then actions should be taken according to law. I am of the view that the Justice of Peace should restrain himself to give such directions to police as it is the sole prerogative of police to initiate a proceeding under section 182, P.P.C.; therefore, it is not appropriate to issue directions by a court to police. There is a bar under section 195(1)(a) of Code of Criminal Procedure, which restrained a magistrate to take direct cognizance under section 182, P.P.C. and even he has no power to issue a direction to police to initiate a proceeding under section 182, P.P.C. On the same principle, it is not justified for a Justice of Peace to issue such instruction while directing for registration of FIR. It appears that at the time of dealing an application under section 22, this direction is given with an intention to curb the tendency of lodging false FIR under the garb of an order of Ex-Officio Justice of Peace.
12. It has been noticed that lodging false FIR after getting directions by an Ex-Officio Justice of Peace is a growing tendency in the society. It is worth mentioning that the function of a Sessions Judge as an Ex-Officio Justice of Peace is not an executive or administrative function F in nature. It is actually a Quasi-Judicial proceeding as described by the honourable Supreme Court in the case reported as Younas Abbas and others v. Additional Sessions Judge, Chakwal and others (PLD 2016 SC 581). Usually, an application under sections 22-A and 22-B is filed before a Sessions Judge supported by an affidavit, and it will be beneficial if these applications must contain an affidavit duly solemnized before the concerned official of identification branch of Sessions Court. Being a judicial officer discharging a quasi-judicial function as Ex-Officio Justice of Peace, a Sessions Judge may take action under the provision of section 181, P.P.C. against those complainants who have knowingly given a false statement to him. In this respect, they may direct the concerned SHOs to furnish information about the fate of every such direction given by him on an application as Ex- Officio Justice of Peace.
13. The upshot of above discussion is that the judgment of the learned Judicial Magistrate is proper in appreciation and I did not find misreading and non-reading of available evidence. With these observations, the instant acquittal appeal is dismissed.