LUBNA SALEEM PERVEZ, J.--The petitioner , Syed Sajid Hussain, through instant petition has assailed the order dated 08.10.2020, passed by Additional Sessions Judge-IX, Islamabad, while exercising powers of Justice of Peace under section 22-A/B Cr.P.C., whereby the complaint of the petitioner was dismissed on the ground that no cognizable offence has been made out and that the petitioner has already filed suit for specific performance of the agreement dated 13.09.2018 and a complaint under Illegal Dispossession Act, 2005, against the proposed accused.
2. Necessary facts of the case are that the petitioner seeks to register an FIR against the proposed accused namely Asad Naveed Khan and his 15 unknown companions, against whom he also filed Rapat No. 1/53, on 18.01.2020, to lodge complaint of illegal and forceful entry armed with weapons into the petitioner's premises and criminal assault on the petitioner and his staff and for snatching of mobile phones, laptop, cash and other household items. The counter complainat in the same police station was also filed by Asad Naveed Khan. On the refusal by the concerned SHO, to register FIR, the petitioner filed application Wider section 22-A, Cr.P.C., before Sessions Judge which was dismissed by the learned Additional Sessions Judge -IX, Islamabad-W est/Justice of Peace, vide order dated 08.10.2020.
3. Learned counsel for the petitioner submitted that the order passed by Respondent No. 1/Justice of Peace (hereinafter referred to as Ex-Of ficio JOP) suffers from legal infirmity and liable to be set-aside; that the Officer Incharge of the Police Station has no authority to refuse registration of FIR as it is the mandate of section 154, Cr.P.C. that once the cognizable offence would take place, the Officer Incharge is bound to record the same in writing; that the petitioner , vide his application disclosed the commission of cogniz able offence to the SHO of the concerned PS who without any reason refused to register the FIR; that the reports of respondent No. 2/SP Investigation and Complaint and. SHO Kohsar , Islamabad, are contradictory to each other which negate the CDR record; that the respondents have no authority to hold inquiry into correctness or otherwise of the information for the purposes of registration of FIR; that investigation conducted by the police authorities prior to recording of FIR is against the principles laid down by the Hon'ble Apex Court in case titled as Mst. Sughran Bibi v. The State (PLD 2018 SC 595); that the Respondent No. 5 has comm itted offences of fraud (under section 420, P.P.C.), criminal trespass (under section 441, P.P.C.) theft (under section 380, P.P.C.) criminal intimidation (under section 506, P.P.C.) and wrongful confinement (under sections 341 and 342 P.P.C.); that the pendency of civil suit does not bar registration of criminal case against the proposed accused.
4. Conversely , learned State Counsel submitted that on the complaint of the petitioner , inquiry/investigation was conducted by the concerned SHO and thereafter by the SP Investigation Cell, and it transpired that no such incident has taken place. The petitioner , during inquiry of the incident, could not produce the original sale deed in respect of the property , thus no cognizable offence was made out to necessitate registration of FIR against the proposed accused.
5. Arguments heard, record perused.
6. Perusal of the record revealed that there is a dispute between petitioner and the proposed accused in respect of House No.8, St. No.10, Sector F-7/3, Islamabad. It appears that proposed accused is the owner of the said property , he entered into an agreement to sell dated 13.09.2018 with the petitioner , who as per pleadings, paid Rs.
2 crore and twenty five lacs as part consideration and obtained possession of the portion of the house marked as 8-A. It also -transpired from the record that the suit for specific performance of agreement dated 13.09.2018 and for permanent injunction has been filed by the petitioner before Senior Civil Judge, Islamabad. The petitioner and the proposed accused have filed complaints in the same Police station to register FIR against each other for offences under sections 420, 341, 342, 506, 380, P.P.C. So far, no FIR has been registered by the police authorities on any of the said complaints.
7. It has transpired from the record that, after entry of the report in the police station, record management system of both the parties, the police authorities have started investigation of the case and conducted probe into the matter regarding the occurrence of offence. It also transpired that inquiry was closed on the ground that the parties are contesting civil suits before the learned Senior Civil Judge, Islamabad and for these reasons the learned JOP, dismissed the petition under section 22-A, vide impugned order dated 08.10.2020.
8. Perusal of the documents and application annexed with petition shows that the petitioner has filed complaint under section 154, Cr.P.C. for registration of FIR to the concerned S.H.O. in respect of commission of cognizable offences of fraud (under section 420, P.P.C.), criminal trespass (under section 441, P.P.C.) theft (under section 380, P.P.C.) criminal intimidation (under section 506, P.P.C.) and wrongful confinement (under sections 341 and 342, P.P.C.), which admittedly was refused by the S.H.O., who conducted probe and investigation into the matter .
Another similar report was also prepared and filed by SSP (Investigation and Complaints). Both these reports were subsequently relied upon by the learned JOP while rejecting the petition filed under section 22-A, C. P .C.
9. The Hon'ble Apex Court as well as High Courts, by now, has resolved the controversy and gave ruling in plethora of case laws and judgments that the S.H.O. has no power to refuse the registration of FIR under section 154, Cr.P.C., if he was informed orally or in writing regarding commission of a cognizable offence. It has been held in the judgment reported as Muhammad Bashir v . Station House Officer ,Okara Cantt . (PLD 2007 SC 539 ) that:- "27. The conclusions that we draw from the above, rather lengthy discussion, on the subject of FIR, are as under:--
(a) 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-
(b) no authority vested with an Officer Incharge of a Police Station or with any one else to hold any inquiry into the correctness or otherwise of the informati on which is conveyed to the S.H.O. for the purposes of recording of an FIR".
10. In the case reported as Ashiq Hussain v. Justice of Peace, Alipur (2010 YLR 774) the Hon'ble Court pleased to observe that local police cannot go into the correctness or truthfulness of the contents of the petition. He is bound to record the statement of the complainant if someone approaches the SHO with the complaint where from the contents of the complaint cognizable offence is made out. Hon'ble Peshawar High Court, vide judgment reported as Yousuf Khan v. The State (2012 PCr.LJ 383) has observed that it is the mandate of section 154, Cr.P.C. that once a cognizable offence takes place and is reported to the police then the Officer Incharge concerned shall record the same in writing. It has been held in Muhammad Hares case (2013 PCr.LJ 449) that "In my considered view, S.H.O Police Station Mithiani was required and bound to register the FIR of applicant Muhammad Haneef under section 154, Cr.P.C. S. H. 0. had absolutely no power to refuse to register the case if from the information/statement a cognizable offence was made out. It is immaterial whether the information is false or correct but the condition precedent for recording the FIR under section 154, Cr.P.C. book is that information must disclose an offence and that too a cognizable one."
11. Another reason given by the learned Ex-Of ficio JOP for rejecting the petitioner's petition is that the matter is of civil nature and, therefore, no cognizable offence has been made out. The Hon'ble Apex Court has also settled this legal issue by holding that there is no bar on initiating civil and criminal proceedings simultaneously as both can run side by side with varying results. Reference in this regard can be made to the case reported as Seema Fareed v.
The State (2008 SCMR 839 ), wherein it has been observed that:- "It is well-settled that, a criminal case must be allowed to proceed on its own merits and merely because civil proceedings relating to same transaction have been instituted it has never been considered to be a legal bar to the maintainability of criminal proceedings which can proceed concurrently because conviction for a criminal offence is altogether a different matter from the civil liability . While the spirit and purpose of criminal proceedings is to punish the offender for the commission of a crime the purpose behind the civil proceedings is to enforce civil rights arising out of contracts and in law both the proceedings can co-exist and proceed with simultaneously without any legal restriction. ".
12. The jurisdiction and power of Ex-Of ficio JOP is provided, under section 22-A(6), Cr.P.C., according to which he may issue appropriate directions to the police authorities concerned on a compla int regarding non-registration of criminal case. The provisions of section 22-A(6) Cr.P.C. has been interpreted by the Hon'ble Supreme Court in Muhammad Bashir's case supra as under:- "40. Therefore, in our opinion, the only jurisdiction which could be exercised by an Ex-officio Justice of the Peace under section 22-A (6), Cr.P.C. was 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 5.11.0. to record an FIR without going into the veracity of the information in question, and no more. Offering any other interpretation to the provisions in question would be doing violence to the entire scheme of the Cr . P.C. which could not be permitted.".
13. It has been observed in case reported as Rab Nawaz v. S.H.O. Police Station Dharki (2012 MLD 736 HC KAR) that jurisdiction of the Justice of Peace is to see as to why Police Officials who are duty bound to record the statement under section 154, Cr.P.C. have refused to fulfill their duty. As per section 22-A(6) Cr.P.C, the role of the JOP is limited to the extent of scrutinizing the case just to see that whether a cognizable offence is made out on the basis of information provided by the informant. He is not authorized to initiate independent investigation to ascertain veracity of information/complaint. So is the case of incharge police statio n, who is duty bound to register the information of cognizable offence and register the FIR as mandated in section 154, Cr.P.C. The Code of Criminal Procedure provides a comprehensive procedure to ascertain and determ ine the truthfulness of complaint after registration FIR. It also provides for discharging the accused from charges any time during trial and in case of false and frivolous information provides for punishment for lodging false complaint.
14. In the light of the above judgments it is thus clear that the concerned S.H.O., if informed about any cognizable offence, has no power to refuse to register an FIR on the complainant under section 154, Cr.P.C.; the concerned SHO/police authorities has no authority to probe into the case to find out the truthfulness and correctness of the commission of offences alleged in the complaint prior to registration of the FIR; jurisdiction of the Ex-Of ficio JOP is limited to the extent of examining the information, without inspecting its authenticity , as to whether it constitutes a cognizable offence or not and that the law imposes no restriction and bar if the criminal and civil proceedings run concurrently .
14. In view of the above, it is held that the learned JOP and police authorities have exceeded their jurisdiction provided under the law. The instant petition is allowed , the impugned order dated 08.10.2020, is set-aside and the concerned S.H.O./respondent No. 3 is directed to register FIR in pursuance of the complaint of the petitioner , in accordance with law .