2015 M L D 1073
[Balochistan]
Before Muhammad Kamran Khan Mulakhail, J
HABIBULLAH ---Petitioner
versus
IRSHAD AHMED and 2 others ---Respondents
Constitutional Petition No.85 of 2015, decided on 19th February, 2015.
Penal Code (XLV of 1860) ---
----Ss. 337 -A, 337- D, 337- E, 147, 148, 149 & 109---Criminal Procedure Code (V of 1898), S.22-
A---Qanun- e-Shahadat (10 of 1984), Arts.85 & 90---Constitution of Pakistan, Art.199---
Constitutional petition ---Maintainability ---Causing Shajjah, Jaifah, Ghayr -Jaifah, rioting, rioting
armed with deadly weapons, common object, abetment ---Registration of FIR ---Nominated
accused lodged FIR with the allegation that respondent along with another launched assault upon
his nephews and resultantly they had been seriousl y injured---Subsequently, said respondent who
was nominated accused in the FIR, submitted an application under S.22- A, Cr.P.C., and on
production of medical certificate of one who was also nominated accused, another respondent
was directed to lodge FIR against the petitioner and others, which order had been impugned in
the constitutional petition ---When respondent and another injured, were already nominated
accused in FIR registered by the petitioner, then recording the version of accused persons, when
they claimed that one of them too had been injured during the course of scuffle, then it became
necessary to record the version of other side, not as a defence version, but different narration
according to their version; and then both the versions would be pla ced before the court; which
after leading the evidence by the respective parties, would be a subject of judicial scrutiny ---
Recording a counter version of already reported occurrence, was well recognized ---When
respondent being a nominated accused in FIR r egistered by the petitioner claimed the injuries,
which were caused to one of his companions, the justice required that both the versions of
respective parties would necessary be recorded; and thereafter, be placed before the court of
competent jurisdictio n for its adjudication strictly in accordance with law ---Order of the court
could not be defeated on the basis of misconceived allegation; and by just filing an affidavit,
particularly when a person who had sworn the said affidavit, himself was fugitive fr om law; and
did not surrender his will before the court ---Said practice, neither could be allowed, nor could be
made a precedent ---Constitutional petition, neither on law, nor on merits being maintainable, was
dismissed.
Muhammad Mushtaq v. The State A dditional Sessions Judge, Lahore and others 2008
YLR 2301; Muhammad Bashir v. Station House Officer, Okara Cantt and others PLD 2007 SC
539; Khizar Hayat's v. Inspector General of Police (Punjab) PLD 2005 Lah. 470 and Muhammad
Haneef v. SHO 2014 PCr.LJ 1044 ref.
Abdul Hadi Tareen for Petitioner.
Nemo for Respondent.
Date of hearing: 4th February, 2015.
ORDER
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---This constitutional petition is
directed against the order dated 15th January 2015 ("impugned order") passed by learned
Additional Sessions Judge, Pishin being designated Justice of the Peace ("trial court") on an
application under section 22- A of the Criminal Procedure Code, 1898 (Cr.P.C.) filed by
respondent No.1, whereby the respondent No.3 i.e. Naib Tehsildar, Bostan, Tehsil Karezat,
Pishin was directed to lodge the FIR against the petitioner and others.
2. Brief facts of the case are that one Rahim Gul the nominated accused, lodged an FIR
No.21/2014 with Levies Station, Bostan on 21st Novembe r 2014 under Sections 337- ADF, 147,
148, 149 and 109 of the Pakistan Penal Code, 1860 ("PPC") with the allegation that the
respondent No.1 along with his brothers and cousins have launched assault upon his nephews,
who were playing in front of their house, resultantly both of them have been seriously injured.
Subsequently, the respondent No.1 who was nominated accused in aforesaid FIR submitted an
application under Section 22- A Cr.P.C. before learned Sessions Judge, Pishin which was
transmitted to the file of Additional Sessions Judge, Pishin and on production of medical
certificate of one Muhammad Iqbal son of Abdul Hakeem who was also nominated accused, the
respondent No.3 was directed to lodge the FIR against the petitioner and others vide order dated
15th January 2015, which is impugned herein.
3. Mr. Abdul Hadi Tareen, learned counsel for the petitioner contended that FIR against the
respondent No.1 and others for causing severe injuries to the petitioner was lodged on 22nd
November, 2014. whereafter, nominated accused persons including respondent No.1 remained
silent near about one month and thereafter filed an application under section 22- A, Cr.P.C.,
which itself is sufficient to prove that the said application was filed after deliberation and
consult ation with intend to build up a counter criminal case against the petitioner and others. He
contended that after filing application under section 22- A, Cr.P.C. the petitioner entered into
appearance through counsel and filed Vakalatnama, when there was no medical certificate on
record. Subsequently, the petitioner proceeded to Karachi for treatment of his injured nephew
and on their return; they have come to know about the impugned order which was culminated
into registration of FIR No.3/2015. He vehemently objected the production of medical certificate
and contended that same was never produced, nor the said injured appeared before the learned
Justice of the Peace. He added that the order was passed in absence of the petitioner, therefore,
he was condemned unheard which course is against the norms of justice. He maintained that the
said medical certificate is still not on record and the learned Presiding Officer has committed a
gross illegality while wrongly mentioning that the medical certificate of alleged injured
Muhammad Iqbal son of Abdul Hakeem has been produced. He added that this petition is
supported by an affidavit; therefore, explanation may be called to the effect that without
production of medical certificate how the direction for registration of FIR was made. He finally
urged for quashment of impugned order and FIR lodged against the petitioner and others.
4. In view of serious allegation leveled against the Presiding Officer, a query was posed to
the learned counsel that whether the petitioner is present in the court who sworn affidavit and
leveled such a serious allegation. The learned counsel responded that since the FIR has been
lodged against the petitioner, therefore, he did not come to the court; again learned counsel was
asked whether a bail has been obtained by the petitioner, on which he responded that since the
quashment of FIR has been sought through this petition, therefore, the petitioner needs not to
obtain the bail.
5. Heard.
6. Irrespective of the merit of the case, which und er the constitutional jurisdiction of this
court cannot be appreciated being mixed question of fact and in view of prayer made, this court
is bound to look into the jurisdictional defect or illegality committed by the learned Justice of the
Peace, while passing the impugned order. So far, the legal aspect of the provision of section 22 -
A, Cr.P.C. is concerned, when the respondent No.1 and injured Muhammad Iqbal son of Abdul
Hakeem are already nominated accused in an FIR registered by the petitioner, then re cording the
version of accused persons, particularly, when they claim that one of them too has been injured
during the course of scuffle, then it becomes necessary to record the version of other side, of
course not as a defence version, but quite different narration according to their version and then
both the versions shall be placed before the court, which after leading the evidence by the
respective parties, would be a subject of judicial scrutiny, recording a counter version of already
reported occurren ce is well recognized in view of dictum laid down by the Hon'ble apex Court.
The learned counsel relied upon a case of Muhammad Mushtaq v. The Additional Sessions
Judge, Lahore and others (2008 YLR 2301) with utmost respect to the judgment passed by the
Hon'ble Judge of the Hon'ble Lahore High Court, Lahore, in (sic) may be imperative to note here
that in the referred to judgment the learned Judge of the Hon'ble High Court, has relied upon the
cases of Muhammad Bashir v. Station House Officer, Okara Cantt a nd others (PLD 2007 SC
539) and Khizar Hayat v. Inspector General of Police (Punjab) (PLD 2005 Lah. 470), in the
referred two judgments recording of counter version, has been discussed with details and both
the aforesaid judgment have been referred time an d again, particularly, in respect of the powers
of Justice of the Peace. Suffice to add here that this court too, while dealing with similar
proposition relied upon aforesaid judgments in case of Muhammad Haneef v. SHO (2014 PCr.LJ
1044). Therefore, when t he respondent No.1 being a nominated accused in FIR registered by the
petitioner claimed the injuries, which were caused to one of his companions, the justice requires
that both the versions of respective parties shall necessary be recorded and thereafter, be placed
before the court of competent jurisdiction for its adjudication strictly in accordance with law.
7. Now adverting to the other contention in respect of non- production of medical certificate,
and same being wrongly mentioned by the Presiding O fficer. On careful consideration of record,
I am of the conclusive opinion that in case of such eventuality the provisions of Qanun- e-
Shahadat Order, 1984 ("order") will come into play, whereas Article 85 of the Order defines the
various kinds of public documents and its sub- Article (3) relates to "documents forming part of
the record of judicial proceedings", while Article 90 provides "presumption as to genuineness of
certified copies", thus the certified copy of public document, particularly, the record r elating to
judicial proceedings carries strong presumption of correctness and sanctity of high order is
always attached to judicial proceedings.
I am not persuaded to accept the bald statement of the petitioner and to discard the
certified copy of judic ial record. The order of the court cannot be defeated on basis of
misconceived allegation and by just filing an ordinary affidavit, particularly when a person who
has sworn the said affidavit, himself is fugitive of law and does not feel it necessary to su rrender
his will before the court. Neither the said practice can be allowed nor it can be made a precedent,
which if allowed will amount to diminish the edifice of administration of justice.
Therefore, it can safely be concluded that this petition neith er on law point nor on merits
is maintainable, thus is dismissed in limine.
HBT/42/Bal 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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