ABDUL MAALIK GADDI, J.---Through this petition, petitioner Muhammad Yaqoob has assailed the legality and propriety of the order dated 14.12.2015, passed by the learned IIIrd Additional Sessions Judge/ Ex-Officio Justice of Peace, Hyderabad, in Cr. Misc. A. No.2563/2015, filed by the petitioner under section 22-A&B, Cr.P.C., whereby the learned Ex-Officio Justice of Peace after hearing the parties counsel, dismissed the said application by observing that the issue involved in the matter appears to be of civil nature.
2. It is argued by the learned counsel for the petitioner that the alleged incident took place on 17.11.2015 between 11:00 to 11:30 a.m., when the petitioner was erecting boundary wall of society along with Abdul Salam, Adnan, Shoukat Ali and Ch. Siddique, when on the instigation of Sikandar Jatoi, accused persons namely Abdul Majeed Jatoi, Sikandar Hayat, Manthar along with 10/12 unknown persons with open faces duly armed with deadly weapons came there and in order to create harassm ent made aerial firing, demolished the said partition wall and then went away by threatening to petitioner of dire consequences.
3. According to learned counsel for the petitioner that as per the allegations alleged by the petitioner in his application moved before the learned Ex-Officio Justice of Peace a cognizable offence was made out; despite this fact, the learned Ex-Officio Justice of Peace without assigning any cogent reason dismissed the said application by observing that the issue involved in the matter was of civil nature.
4. Mr. Masood Rasool Babar learned counsel for the proposed accused submits that no incident as alleged by the petitioner has taken place and the dispute between the parties is of civil nature, which fact is also evident from the report of the concerned SHO. He further submits that the order passed by the learned Ex-Officio Justice of Peace is perfect in law and on facts, as the petitioner with mala fide intention is trying to convert the said civil dispute into criminal, therefore, it should be curbed and stopped.
5. Learned AAG has supported the impugned order.
6. Heard the learned counsel for the parties and perused the record; We are not impressed by the findings of the learned Ex-Officio Justice of Peace and came to the conclusion that whenever a criminal offence in a dispute of civil nature is reported, it should be decided side-by-side. Be that as it may, the case and claim of the petitioner is that on the relevant date and time, the accused nominated in the criminal miscellaneous application came at the place of alleged incident duly armed with deadly weapons and made aerial firing while demolishing the partition wall erected by the petitioner and threatened not to do the same again. The act of the proposed accused and the allegations as alleged in this case are serious in nature hence require inquiry/investigation.
7. Section 22-A & B, Cr.P.C. provides that if an offence is committed and on report the SHO of the concerned police station is duty bound to record the statement of the litigant and if from such statement a cognizable offence is made out then he has to incorporate the same in book under section 154, Cr.P.C. and investigate the matter. In the case reported as Sherin Zada v. State (2015 MLD 286), it is observed that it is legal duty of the police under section 154, Cr.P.C. to register a criminal case whenever commission of a cognizable offence is reported to it and if the police is not registering a case regarding cognizable D offence, the Ex-Officio Justice of the Peace can issue appropriate directions under section 22-A(6)(i), Cr.P.C. to the concerned police authorities to register a case even without seeking report from the SHO concerned to know the reasons why the local police have not registered a criminal case in respect of complainant's allegation."
8. It is stated by learned counsel for the petitioner that petitioner time and again approached the concerned SHO(s) for redressal of his grievance but all times the said SHO(s) have refused to register the case, therefore, he filed the application before the Court below.
9. In the case of Muhammad Bashir v. Station House Officer, Okara Cantt: and others (PLD 2007 Supreme Court 539), wherein it has been held as under:- "----Ss. 154, 155, 157 & 162---Recording of FIR---Enquiry as to correctness or otherwise of information received by an Officer Incharge of Police Station for the purpose of being reduced in writing as FIR and powers of Officer Incharge of Police Station to refuse to record FIR only because, in his opinion, the allegations conveyed to him were false--Scope--No authority vested with an Officer Incharge of a Police Station or with anyone else to refuse to record an FIR where the information conveyed, disclosed the commission of a cognizable offence---No authority vested with an Officer Incharge of a Police Station or with anyone else to hold any inquiry into the correctness or otherwise of the information which was conveyed to the S.H.O. for the purposes of recording of an FIR. Any FIR registered after such an exercise i.e. determination of the truth or falsity of the information conveyed to the S.H.O., would get hit by the provisions of section 162, Cr.P.C.--- Existence of an FIR was no condition precedent for holding of an investigation nor was the same a prerequisite for the arrest of a person concerned with the coMmission of a cognizable offence; nor does the recording of an FIR mean that the S.H.O. or a police officer deputed by him was obliged to investigate the case or to go through the whole length of investigation of the case mentioned therein or that any accused person nominated therein must be arrested---Check against lodging of false FIRs was not refusal to record such FIRs, but punishment of such informants under S.182, P.P.C. etc. which should be, if enforced, a fairly deterrent against misuse of the provisions of 5.154, Cr.P.C."
10. Since serious allegations have been leveled by the petitioner against the proposed accused and as per petitioner's counsel the FIR of the petitioner is not being registered, therefore, under the aforementioned facts and circumstances and in view of the case-law, we set aside the impugned order and direct the petitioner to appear before the concerned SHO for recording his statement under section 154, Cr.P.C. Further the SHO of concerned police station is directed that after recording the statement of the petitioner, if a cognizable offence is made out, he incorporate the same in book under section 154, Cr.P.C. and the matter should be investigated in accordance with law. However, until and unless the I.O. of the case collects any tangible/concrete evidence, no arrest of the accused, nominated in the present matter, shall be made; however, it is made clear that in case, if the said proceeding/ FIR is found false then proceedings under section 182, P.P.C. may be vitiated against the complainant/petitioner.
11. The petition stands disposed of in above terms along with the pending application(s).
12. Office is directed to immediately send a copy of this order to SSP Hyderabad for information and compliance.