M UHAM M AD KAM RAN KHAN M ULAKHAIL, J. Through this Constitutional Petition the following prayer has been sought: "It is accordingly most respectfully prayed that impugned order dated 10-08-2021 passed by Sessions Judge Sariab Division/ Ex-Officio(sic) may kindly be set aside and application under section 22-A, Cr.P.C filed by respondent No.1 may kindly be rejected, in the interest of justice, equity and fair play"
2. This Constitutional petition was admitted to regular hearing vide order dated 23rd August 2021, when the operation of impugned order dated 10th August 2021 passed by Sessions Judge, Sariab Division/Ex-Officio Justice of Peace, was suspended. Meanwhile the connected Contempt Application No. 58 of 2021 was filed against the respondents with the following prayer: "It is, accordingly, most respectfully prayed that contempt of Court proceedings may kindly be initiated against the respondents and they may kindly be punished as per law in the interest of justice, equity and fair play."
Since the instant petition and the contempt application are interconnected, therefore are being disposed of through this common judgment.
3. Brief facts as stated in the petition are that an application under section 22-A, Cr.P.C. was filed by respondent No.1 Mohi-ud-Din, before the Sessions Judge Sariab/Ex-officio Justice of Peace, which was accepted vide order dated 10th August 2021 ("impugned herein"), whereby the respondent No.2/SHO of concerned police station was directed to lodge FIR against the petitioner.
4. The petitioner being aggrieved of the order passed by the learned Justice of Peace, preferred the instant petition, which was admitted to the regular hearing by this court vide order dated 30th August 2021, whereby the operation of impugned order was also suspended.
The petition was filed mainly on the ground that no cognizable offence was alleged and according to medical certificate dated 13th July 2021, only 'bruises on left side of neck, both forearms and scratches on a right knee joint' were noted by the Medico Legal Officer. Meanwhile a C.M.A. No. 2692 of 2021 for urgent hearing along with C.M.A. No. 2693 of 2021 for interim relief was filed, which was accepted vide order dated 30th August 2021 mainly for the reason that after passing of order dated 23rd August 2021 by this court with regard to suspension of impugned order of the learned Justice of Peace, the S.H.O. Police Station Khaliq Shaheed (respondent No.2), registered an FIR bearing No. 139 of 2021 under section 337-A, P.P.C. on same date. Meanwhile contempt application was filed along with Miscellaneous applications, in which notices were issued to the respondents/contemnor.
5. Vide order dated 30th August 2021, when operation of impugned FIR was also suspended and DIG Quetta was also directed to appear in person to explain the very reasons regarding violation of the court's order. The case was fixed for 02nd September 2021, when instead of DIG Quetta, SP (Legal) Quetta and SP (Investigation) Sariab Quetta along with the SHO and ASHO appeared before the court and it was stated on behalf of the police officials that order of this court was conveyed to the police station on 24th August 2021, while the FIR was lodged on 23rd August 2021; that the officials were neither aware about suspension of impugned order of Justice of the Peace, nor the copy of the order was deliver to them on 23rd August 2021, therefore, the FIR was lodged without having any intention of contempt of court or intended violation of court's order in any manner.
Be that as it may, but it has been observed that the impugned order of the learned Justice of Peace was passed on 10th August 2021, while this court suspended the impugned order on 23rd August 2021. Under the circumstances a query was posed to the police officials, particularly to the SHO concerned, that why the order dated 10 August 2021 passed by Justice of Peace was held in abeyance till 23rd August 2021? then whey in haphazard and cursory manner the FIR was lodged on the same day, when the operation of impugned order dated 10th August 2021 of Justice of Peace was suspended by this court. The SHO concerned responded that due to security duty of Mohram-ul-Haram the order of Justice of Peace could not be Implemented, but soon after emergency duty, the direction of the Justice of Peace were complied with.
6. We were not satisfied from the submission made by the SHO, therefore, once again the DIG Quetta was directed to appear in person and explain the failure of the police machinery with regard to implementation of the courts' orders. Suffice to mention here that initially the order dated 10th August 2021 was violated, when it was not complied with in letter in spirit, and, subsequently, again the order dated 23rd August 2021 passed by this court was violated, when the impugned order of court below was suspended. On 14th September 2021 the following police officials were in attendance: "Mr. Muhammad Azhar Akram, DIG Quetta, Mr. Hameedullah Dasti, SP (Legal), Mr. Hassan Abbas Malik, PDSP Quetta, Nadeem Khan SI/ASHO Police Station Khaliq Shaheed, Waqar Malik, Ex-Head Mohrar Police Station Khaliq Shaheed Quetta."
Report was submitted and the DIG Quetta present in person also apprised the court that soon after receipt of order of this court, he has suspended the respondent No.2 Abid Mengal (SHO Police Station Khaliq Shaheed), while he further assured that every order of the court shall be complied with in letter in spirit and he has personally issued direction to all the police stations that in any case, no delay shall be made for implementing the order of the courts, whatever the nature may be. The conduct of the DIG Quetta was overall apologetic and he while tendering unconditional apology assured the court on behalf of the police Department that in future no such complaint, disobedience, violation and willful defiance of the court's order would take place. The explanation furnished by the DIG Quetta being satisfactory is accepted accordingly. However, certain measures are required to be taken, to ensure that in future no such willful defiance shall take place.
7. Now adverting to validity and legality of the impugned order dated 10th August 2021, passed by the learned Justice of the Peace, we have observed that according to Medical Certificate, only bruises and scratches were noted by the Medico Legal Officer and said offences fall within the preview of an offence related to other hurts, which are punishable under Section 337-L(1), which is non-cognizable in nature, thus the order passed by Justice of the Peace is not sustainable.
8. Needless to observe here that provision of section 22-A(1-6), which empowers the Justice of the peace to issue necessary direction for registration of FIR, if prima facie, after perusal of available record and contents of the application, whether a cognizable offence is made out or otherwise.
However, in case of non-cognizable offence, two remedies are available, first before the SHO concerned, to whom the application has been sent, who will register the complaint in the Daily Roznamcha report and proceed according to provision of section 155, Cr.P.C. initially for seeking permission from the Judicial Magistrate for investigation and thereafter submit the complaint before the court. The other remedy is also a private complaint under Section 200 Cr.P.C, which is available to the complainant before the said court.
Thus for the above reason we are inclined to accept this Constitutional Petition and after setting aside the impugned order dated 10th August 2021, passed by Sessions Judge Sariabl Ex-Officio Justice of the Peace, the FIR bearing No. 139 of 2021, under section 337-A, P.P.C. registered with Police Station Khaliq Shaheed is hereby quashed.
White as far as the connected contempt application is concerned, it may not be out of place to mention here that the matters of contempt are always between courts and the contemnor, while the applicant in this behalf only enjoys the status of informer. Since the DIG has informed the court that the delinquent officer (Abid Mengal/SHO) has been suspended and inquiry has also been initiated against him, therefore, we do not feel necessary to further proceed with the contempt proceedings, which is accordingly disposed of.
Before parting with this judgment, we apt to pass certain directions with regard to implementations of orders of the courts by the Police Department of the Province in the following manner:
1. Every order of the court, in which any direction is issued to any Police Officer/official, of whatever the rank or designation, he/she may be, shall be conveyed to him/her by the District Public Prosecutor, and in case of his absence, by the Naib Court of the court within twenty four (24) hours.
If the officer concerned intends or realizes that the order cannot be implemented for any reason, he shall record the reason(s) in this behalf and forward the same to the legal Branch of the Police Department for opinion and shall wait till receipt of the opinion from the legal branch.
Any matter forwarded to the legal branch, and, the decision thereon shall be finalized within next 48 hours.
4. If the Police Department decides to assail the order of a court before next higher forum, it shall also be filed within next 24 hours.
5. That all directions mentioned herein above shall be finalized within four days from passing of the order, otherwise shall immediately be implemented without any further delay.
Office is directed to transmit the copy of this order to the DIG Quetta, AIG and SP (Legal) of the Police Department with direction for onward transmission to all the police Stations in the Province, for information and compliance, while the outcome of the inquiry proceedings initiated against the delinquent officer Abid Mengal SI/SHO (under suspension) shall be submitted before the Registrar of this court within 90 days for our perusal in chamber.
With above directions and observations the petition stands accepted and the connected contempt application is disposed of accordingly.