2012 Y L R 134
[Balochistan]
Before Muhammad Hashim Khan Kakar, J
GUL MUHAMMAD ---Applicant
Versus
DOST MUHAMMAD
and 4 others ---Respondents
Criminal Quashment Application No.S -17 of 2009, decided on 12th August, 2011.
(a) Criminal Procedure Code (V of 1898) ---
----Ss. 22 -A, 154 & 561 -A---Registration of case ---Quashing of order, petition for ---Petition
for registration of case against respondents filed under S.22-A, Cr.P.C., having been
dismissed by the Justice of Peace, petitioner had filed petition for quashing of order of said
dismissal order ---Ex-Officio Justice of Peace, did not perform Judicial functions, nor his
directions would fall within the scope of Judicial order, but were administrative and
ministerial in nature ---Said directions could be challenged under S.561 -A, Cr.P.C., because
administrative orders, were required to be challenged under said S.561 -A, Cr.P.C. ---
Impugned order being administrat ive or supervisory in nature, was not amenable to the
revisional jurisdiction of High Court ---No authority was vested with an officer -in-charge of a
Police Station or with Justice of Peace to hold any inquiry into the correctness or otherwise of
the inform ation, which was conveyed to the S.H.O. for the purpose of recording of the F.I.R. -
--Record of the present case reflected that no inquiry whatsoever in nature was conducted by
the Justice of Peace after receiving application under S.22 -A, Cr.P.C. ---Simplic itor, a report
was submitted showing the involvement of deceased and injured in a number of criminal
cases lodged with Police Station ---Petition was dismissed.
(b) Constitution of Pakistan ---
----Art. 199 ---Constitutional jurisdiction ---Scope ---Exerci se of discretion under Art.199 of
Constitution, was not dependent only on illegality committed by a competent authority, but
was also controlled by some other important considerations, such as the seeker of a writ being
an aggrieved person; availability of alternative remedies, like the filing of complaint etc.
(c) Criminal Procedure Code (V of 1898) ---
----Ss. 22 -A(6) & 154 ---Registration of criminal case ---Procedure ---Powers of Justice of
Peace ---Scope ---If the information related to the commission of a cognizable offence, same
would fall under S.154, Cr.P.C.; and a Police Officer was under statutory obligation to enter
it in the prescribed register ---Condition precedent was simply twofold; first it must be on
information; and secondly, must relate to a cognizable offence on the face of it, and not
merely in the light of subsequent events ---Police Officer was found to receive a complaint,
when it was referred to him or where the commission of an offence was reported to him
orally, he was bound to take d own the complaint and it did not depend upon the sweet will of
the Police Officer who could or could not record the report ---Only jurisdiction, which could
be exercised by Ex -Officio Justice of Peace under S.22 -A(6), Cr.P.C., was to examine,
whether the in formation disclosed by the applicant did or did not constitute a cognizable
offence; and if it did, then to direct the concerned S.H.O. to record an F.I.R. without going
into the veracity of the information in question.
(d) Criminal Procedure Code (V of 1898) ---
----Ss. 22 -A & 561 -A---Constitution of Pakistan, Art.199 ---Registration of criminal case ---
Powers of High Court to review or set aside order of Justice of Peace ---Scope ---High Court
under Art.199 of the Constitution and S.561 -A, Cr.P.C., was em powered to review or set
aside order passed under S.22 -A, Cr.P.C., but, such powers could only be exercised, if lower
court had not applied its judicial mind or had overlooked some material aspects of the case ---
When the lower court had passed a well -reaso ned order, keeping in view the fact and
circumstances of the case, then no interference was required by High Court ---In the present
case, neither the legal heirs of deceased nor the injured had come forward to record their
version ---Petitioner had filed application under S.22 -A, Cr.P.C. after unexplained delay of
about three months, that too, while suppressing the facts regarding the death of deceased and
injuries to a number of people who were chasing the dacoits ---Petition for quashment of
order was dismissed in circumstances.
Bahadur Khan for Applicant
Muhammad Aslam Chishti for Respondents Nos. 1 to 3.
Abdullah Kurd for the State
Date of hearing: 5th August, 2011.
ORDER
MUHAMMAD HASHIM KHAN KAKAR, J. ---Through this petition, the p etitioner has
challenged the order dated 18th September, 2009, passed by Mr. Jan Muhammad Gohar,
learned Sessions Judge, Sibi Division, Sibi/Justice of Peace, Sibi, whereby the application
filed by the petitioner under section 22 -A of the Cr.P.C. for regis tration of case against
respondents Nos.1 to 3 was dismissed.
2. Mr. Bahadur Khan, learned counsel for the petitioner has submitted that respondents
Nos.1 to 3 came to village Abdul Sattar on 9th June, 2009 at 5 -00 p.m., while being
equipped with d eadly weapons, made firing at Abdul Sattar and Ali Nawaz and caused
firearm injuries to Abdul Sattar on his neck, right arm and chest, who succumbed to the
injuries at the spot, whereas Ali Nawaz also sustained injuries. However, the petitioner
aggrieves t hat he timely reported the matter to respondent No.4 for registration of case
against respondents Nos.1 to 3, but respondent No.4 (S.H.O.) lingered on registration of case
for one reason or the other, who, eventually, refused to lodge the F.I.R. against t hem in
violation of section 154 of the Cr.P.C. Consequently, he had no option, but to file an
application under section 22 -A of the Cr.P.C. before the learned Sessions Judge/Justice of
Peace, Sibi, after receipt of report, the Sessions Judge proceeded to dismiss the said
application vide order dated 18th September, 2009. Learned counsel for the petitioner has
further submitted that no authority vested with an officer -in-charge of a police station or with
anyone else to refuse to record an F.I.R., where the information conveyed, disclosed the
commission of a cognizable offence. He has also submitted that the learned Sessions Judge,
Sibi, was not authorized to hold any inquiry into the correctness or otherwise of the
information, which is conveyed to the S.H. O., for the purpose of recording of an F.I.R. and he
had also committed an illegality while dismissing the application filed by the petitioner.
3. On the other hand, Mr. Muhammad Aslam Chishti, Advocate, on behalf of
respondents Nos.1 to 3, who were unde r notice in the present petition, submitted that
impugned order was quite justified and the present petition is liable to be dismissed, as
material facts were suppressed by the petitioner, because deceased Abdul Sattar and alleged
injured Ali Nawaz were a ssociated with a gang of dacoits and had never come forward during
the whole episode to record their version, while, on the contrary, the petitioner, who is
completely a stranger, had filed the application under section 22 -A of the Cr.P.C. before the
Sessi ons Judge after unexplained delay of about three months with mala fides, just to harass
the police authorities and respondents Nos.1 to 3 on account of previous enmity. He further
maintained that the petitioner was neither party to the whole episode, which culminated in the
death of two persons and injuries to a number of persons, nor he was aggrieved person and as
a matter of fact application under section 22 -A of the Cr.P.C. had been moved malafidely just
to save the remaining accused involved in a number of cases lodged against them as a result
of incident in question. He lastly contended that the instant petition under section 561 -A of
the Cr.P.C. is not maintainable and impugned order was to be challenged/assailed through
Constitutional Petition.
4. So far as the contention of Mr. Muhammad Aslam Chishti, Advocate, regarding
maintainability of the petition is concerned, I am of the view that Ex -Officio Justice of Peace
does not perform judicial functions, nor his directions are coming within the scope o f judicial
orders, but their directions are administrative and ministerial, therefore, they can be
challenged under section 561 -A of the Cr.P.C., because administrative orders of the
Magistrates are also required to be challenged under section 561 -A of the Cr.P.C. The order,
being administrative or supervisory in nature, is not amenable to the revisional jurisdiction of
this Court, whereas exercise of discretion under Article 199 of the Constitution of Islamic
Republic of Pakistan, 1973 was not dependent o nly, on illegality committed by a competent
authority, but was also controlled by some other important considerations, such as, the seeker
of a writ being an aggrieved person; availability of alternative remedies, such as, filing of a
complaint etc.
5. I am in agreement with the learned counsel for the petitioner that no authority vested
or with an officer -in-charge of a police station or with Justice of Peace to hold any inquiry
into the correctness or otherwise of the information, which is conveyed to t he S.H.O. for the
purposes of recording of an F.I.R., but the record of instant case reflects that no inquiry
whatsoever in nature was conducted by the Justice of Peace after receiving an application
under section 22 -A of the Cr.P.C., rather, simplicitor, a report was submitted, showing the
involvement of deceased Abdul Sattar and injured Ali Nawaz in a number of criminal cases
lodged with police station, Sibi and facts regarding to the incident, culminated in death of
deceased Abdul Sattar and one Mir Mehm ood Ali, Ex -Union Council Nazim, who were
chasing the culprits at the fateful day of incident.
6. There is no cavil to the proposition that if there is information, relating to the
commission of a cognizable offence, it falls under section 154 of the Cr. P.C. and a police
officer is under statutory obligation to enter it in the prescribed register. The condition
precedent is simply two -folds; first it must be an information and secondly, it must relate to
cognizable offence on the face of it and not merely in the light of subsequent events. A
police officer is bound to receive a complaint, when it is preferred to him or where the
commission of an offence is reported to him orally, he is bound to take down the complaint.
Thus, it does not depend upon the sw eet will of the Police Officer, who may or may not
record it. It is settled principle of law that the only jurisdiction, which could be exercised by
an Ex -Officio Justice of the Peace under section 22 -A(6) of the Cr.P.C., was to examine
whether the informa tion disclosed by the applicant did or did not constitute a cognizable
offence and if it did then to direct the concerned S.H.O to record an F.I.R. without going into
the veracity of the information in question, but the record of the instant case is indic ative of
the fact that one Mukhtiar Ahmed on 9th June, 2009 filed an application to S.H.O. with the
averments that he, along with his relative Bashir Ahmed, was proceeding on his motorcycle
to his village Pahorr Bagh city, when at about 5 -15 p.m., near Pee r Tiyar Ghazi, three
persons, with muffled faces, while being equipped with Kalashnikovs, forcibly intercepted
their motorcycle and deprived him of his mobile phone and cash amount of Rs.8,000, who are
now being followed by police party and their relatives , however, culprits also called on
telephone their relatives for help and in the meantime their accomplices Imdad, Fateh
Muhammad, Abdul Sattar, Abdul Hameed, Muhammad Anwar, Takri Muhammad Hassan
and Ghulam Mustafa also reached on motorcycle, while b eing equipped with Kalashnikov,
made firing at police party and their helpers and Jalal Khan, Nazim, UC, Mir Mehboob Ali,
Mir Saleem Khan and Abdul Majeed, suffered firearm injuries in exchange of firing,
resultantly, Mir Mehboob Ali succumbed to the injur ies at the spot and culprits made their
escape good, but the police party, after following the culprits made firing upon them,
resulting in death of one culprit Abdul Sattar, while rest of the culprits Qazi, Ali Khan, Ehsan
Khan, Safeer Khan, Naseer and Al i Nawaz were arrested along with recovery of
Kalashnikovs and stolen motorcycle and criminal cases vide Crime Nos.35 to 39 were
registered against the arrested accused persons, which cases are pending before the Court of
law for trial.
7. I am mindful of the fact that under Article 199 of the Constitution and section
561-A of the Cr.P.C, High Court is empowered to review or set aside order passed under
section 22 -A of the Cr.P.C, but such powers could only be exercised, if lower Court has not
appli ed its judicial mind or has overlooked some material aspects of the case. When the lower
Court has passed a well -reasoned order, keeping in view the fact and circumstances of the
case, then no interference is required by the High Court. In the instant m atter, neither the
legal heirs of Abdul Sattar, nor the injured Ali Nawaz came forward to record their version,
while, on the contrary, the petitioner instituted an application under section 22 -A of the
Cr.P.C. after unexplained delay of about three months , that too, while suppressing the facts
regarding the death of Mehboob Ali and injuries to a number of people, who were chasing the
dacoits. From the peculiar circumstances of the case, it can safely be inferred that the
application was instituted by the p etitioner so as to save the skin of arrested culprits from
clutches of law, pressurizing the respondents Nos.1 to 3, being heads of opponent tribe and to
frustrate the registration of murder case against his relatives for commission of death of Mir
Mehboob Ali and attempt to commit murder of Mir Saleem Khan and Abdul Majeed. The
respondents Nos.1 to 3 never pictured at any stage or incident, which took place between the
police party and dacoits. The recovery of crime weapons, registration of cases and recov ery
of stolen motorcycle from the possession of deceased Abdul Sattar and his companions, are
the facts, which negate the version of petitioner.
For what has been discussed hereinabove, while finding no substance in the instant petition,
the same is dism issed.
H.B.T./87/Q Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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