PLJ 2017 Quetta 41 (DB)
Present : MUHAMMAD HASHIM KHAN KAKAR AND ABDULLAH BALOCH , JJ.
MUHAMMAD KHAN and another --Petitioners
versus
ADDITIONAL SESSIONS JUDGE, CHAMAN and others --Respondents
C.P. Nos. 1114 of 2016 and 34 of 2017, decided on 17.4.2017.
Criminal Procedure Code, 1898 (V of 1898) --
-----Ss. 22- A & 25 --Scope of --Registration of FIR --Power of ex- officio justice of peace --The
Sessions Judges being authorized to act as Ex -Officio Jus tice of Peace, under provisions of
Section 25, Cr.P.C., thus they are empowered to exercise powers of Justice of Peace as
provided under Section 22- A, Cr.P.C. [P. 45] A
Criminal Procedure Code, 1898 (V of 1898) --
----S. 154--Commission of cognizable offenc e--Officer Incharge of Police Station, shall
reduce into writing, every information given to him, either written or oral, relating to
commission of a cognizable offence. [P. 46] B
Criminal Procedure Code, 1898 (V of 1898) --
----S. 155-- Commission of offenc e cognizable--Duty of SHO --It is statutory duty of Officer
Incharge of Police Station, to reduce in writing information provided to him, about
commission of an offence cognizable in nature --While Section 155, Cr.P.C. deals with
information received in respect of an offence being non -cognizable in nature. [P. 46] C
Criminal Procedure Code, 1898 (V of 1898) --
----S. 157-- Commission of offence --Inquiry --Justice of peace-- Investigation--The Officer
Incharge of Police Station was required to arrive to a decision that whether any cognizable
offence is made out or not, if so, FIR was to be registered. [P. 47] D
Criminal Procedure Code, 1898 (V of 1898) --
----S. 154-- Scope of --Inquiry --S.H.O. --It may be reiterated and even emphasized that there
was no provision in a ny law, including said Section 154 of the Cr.P.C. which authorized an
Officer- Incharge of a Police Station to hold any enquiry to assess correctness or falsity of
information received by him before complying with command of said provisions, which obliged him to reduce same into writing irrespective of fact whether such an information was
true or otherwise. [P. 48] E
Criminal Procedure Code, 1898 (V of 1898) --
----S. 22- A(6) --Ex-officio justice of peace --Cognizable offence --Jurisdiction --Therefore, in
our opinion, only jurisdiction which could be exercised by an Ex -officio justice of Peace
under Section 22- A (6), Cr.P.C. was to examine whether information disclosed by applicant
did or did not constitute a cognizable offence and if it did then to direct concer ned S.H.O to
record an F.I.R. without going into veracity of information in question, and no more --
Offering any other interpretation to provisions in question would be doing violence to entire
scheme of Cr.P.C. which would not be permitted.
[P. 49] F
Criminal Procedure Code, 1898 (V of 1898) --
----Ss. 22- A, 157 & 159--Registration of case --Refusal of --Power of --Question of --Thus,
there is no concept of making inquiry before registration of FIR, with exception as provided
under Sections 157 and 159, Cr.P.C --In case in hand offences of murder is alleged against
proposed accused persons, by petitioner, thus in circumstances, Tehsildar was not empowered, to refuse registration of FIR --The Additional Session Judge, while exercising
powers under Section 22- A, Cr .P.C., completely failed to understand nature of powers
conferred to him under provisions of Section 22 -A, Cr.P.C --Thus, failed to exercise powers
vested in him --The impugned order in present petitions is in complete negation of law, which
cannot remain in field. [P. 49] G & H
Mr. Ajmal Khan Kakar, Advocate for Petitioner (in C.P. No. 1114 of 2016).
Mr. Sohail Ahmed Rajpoot, Advocate for Petitioner (in C.P. No. 34 of 2017).
Mr. Abdul Latif Kakar, Additional P.G. for Respondent. Mr. Samiullah Khan, Advocate for proposed accused (Abdul Raheem etc.).
Date of hearing: 3.4.2017. J
UDGMENT
Abdullah Baloch, J. --This common judgement disposes of Constitutional Petitions No. 1114
of 2016 and C.P. No. 34 of 2017, assailing the order dated 30th November 2016 (hereinafter
referred as, “the impugned Order” ) passed by learned Additional Session Judge Qillah
Abdullah at Chaman (hereinafter referred as, “the Justice of Peace” ), whereby dismissing
the application under Section 22- A, Cr.P.C. for registration of FIR filed by the petitioner
Muhammad Khan (C.P. No. 1114/2016) being the cousin of deceased Bibi Khatima, where the petitioner Khuda -e-Rahim in C.P. No. 34 of 2017 is the father of deceased.
2. Facts of the case are that on 19th November 2016, the petitioner Muhammad Khan, filed an application under Section 22- A, Cr.P.C. before the learned Justice of Peace for registr ation
of FIR against the husband of deceased namely Abdul Raheem and others, stating therein that his cousin namely Bibi Khatima was married with accused Abdul Raheem Son of Nizam and after Rukhsati, she joined her husband (accused), but in the night of 16th November 2016 the deceased was brought to hospital in dead condition, wherein her dead body was left a day and on 17th November 2016 she was taken back and funeral ceremony of her was conducted without informing the parents and other relatives of deceas ed, however, the such fact of
murder came to the knowledge of the applicant through some relative residing in the
neighborhood of the accused that accused Abdul Raheem with the connivance of his uncle Sher Jan and Bacha, Aminullah and Hidayatullah have kil led the deceased by means of fire
arms. It is further averred in the application that the uncle of the petitioner and the father of the deceased is an old aged ailing person, while his son is in psychological condition, thus being the real cousin, the appl icant is approaching the Justice of Peace for registering the
FIR.
3. Record reflects that the learned Justice of the Peace issued notices to the Tehsildar concerned, who filed his reply by mentioning that the FIR of the said incident has already been reg istered bearing FIR No. 15/2016 against the brother of deceased. Whereafter,
arguments were heard and the learned Justice of the Peace dismissed the application under Section 22- A, Cr.P.C. vide impugned order dated 30th November 2016, whereafter the
petitioner on 8th December 2016 filed the instant petition.
4. While during pendency of above petition, the father of deceased Bibi Khatima also filed
Constitutional Petition No. 34/2017, on the same subject stating therein that the behavior of husband Abdul Raheem Agha was not cordial with the daughter of petitioner, who used to maltreat the deceased and ultimately he alongwith his other relatives committed her murder on 16th November 2016 and buried her without informing him and his other relatives, but just to save their skin and being hardened criminals registered a false FIR against the son of petitioner, whereas he could not pursue for registration of FIR against the culprits due to serious injuries in an incident reported in FIR No. 39/2016 of PS Saddar Quetta, after becoming stable the petitioner approached the Levies authorities, who refused to lodge the same.
5. Learned counsel for petitioners stated that the Incharge Officer of concerned Levies Thana had absolutely no authority or jurisdiction to ascertain or conduct inquiry with regard to
truthfulness or falsehood of the complaint placed before it rather under Section 154, Cr.P.C. the Incharge of Police Station or Levies Thana are bound to lodge the report immediately on receipt of information with regard to commission of a cognizable offence. Learned counsel has referred the provisions of Section 154, Cr.P.C. and stated that after using the word ‘Shall’ in the said section, all the authorities of Law Enforcing Agencies are duty bound to lodge the
FIR, but non- registration of the FIR by the Levies is indicative of the fact that the concerned
Tehsildar has travelled beyond the jurisdiction not vested to him under the law. It was argued by the learned counsel for petitioners that the husband of decea sed is a hardened criminal and
in order to save his skin from the consequence of the murder, has succeeded in lodging the FIR against the brother of deceased; that the learned justice of Peace has also failed to exercise its jurisdiction in accordance with law and dismissed the application under Section
22-A, Cr.P.C. in the manner, which is not recognized by the settled norms of justice.
6. Learned Additional Prosecutor General assisted by the learned counsel for the proposed accused Abdul Raheem Agha and others, while supporting the impugned order of learned Justice of Peace contended that filing of application for registration of FIR before the learned Justice of Peace by the petitioners is merely an attempt to save the skin of real culprit accused Amanul lah, who was the brother of deceased and committed the murder of his deceased sister
being annoyed from her, who had eloped her parents and married with Abdul Raheem Agha out of their consent; that soon after committing the murder the husband of the deceas ed
Abdul Raheem Agha approached the concerned Levies Thana and on his complaint FIR No.
15/2016 under Sections 302, 34, PPC was registered; that the investigation of the case has
already been transferred to Crimes Branch Quetta for specialized investigatio n.
7. Heard the learned counsel and perused the available record. Perusal of record reveals that there are two versions in the instant case. The first version has been set -up by the husband of
the deceased Bibi Khatima, who stated that the brother of her husband was annoyed with the marriage of deceased with him as she out of the consent of her parents and others eloped her house and joined him after solemnizing the marriage in accordance with Sharia and keeping in view such grudge, his brother -in-law Aman ullah alongwith another accused entered into
his house and murdered his sister i.e. Bibi Khatima, who otherwise was the legally wedded wife of the said Abdul Raheem Agha and after commission of crime, he approached the concerned Levies and got registered t he FIR No. 15/2016 at Levies Thana Gulistan under
Section 302, 34 PPC, but the petitioners in order to save the real murderer and with mala fide
intention have approached for registration of FIR before the learned Justice of Peace.
8. To the contrary, the version set -up by the petitioners are that the deceased was married
with the proposed accused Abdul Raheem Agha, who committed her murder on 16th November 2016 and threw her dead body in the hospital and took her dead body back on the subsequent date, whe reas he has lodged the FIR on 18th November 2016. The petitioners
further alleged that they were unaware about the occurrence and subsequently they were informed about the occurrence, hence immediately the Justice of Peace was approached for redressal of g rievance, but without any fruitful results.
9. Be that as it may, both the parties are alleging against each other for committing the
murder of deceased Bibi Khatima, hence the facts and circumstances of the case demands fair
and just investigation in the matter in order to detect the real murderer and the victim family,
because the postmortem report of the deceased confirms the unnatural death. For such
purpose, the investigation of the case has already been shifted to Crimes Branch.
10. Now reverting to the impugned order dated 30th November 2016, which was made on
the application filed by the petitioner under provisions of Section 22- A, Cr.P.C. The Sessions
Judges being authorized to act as Ex -Officio Justice of Peace, under provisions of Section 25,
Cr.P.C., thus they are empowered to exercise the powers of Justice of Peace as provided
under Section 22- A, Cr.P.C., which states as under: --
“22-A. powers of Justice of the Peace.
(1) ………….
(2) ………….
(3) ………….
(a) ………….
(b) ………….
(4) ………….
(5) ………….
(a) ………….
(b) ………….
(c) ………….
(6) An ex -officio justice of the peace may issue appropriate directions to the police
authorities concerned on a complaint regarding;
(i) non-registration of criminal case;
(ii) transfer of investigation from one police officer to another; and neglect, failure or
excess committed by a police authority in relation to its functions and duties. “
Sub- section (6)(i) of the section is relevant in present case. In addition Section- 154, Cr.P.C. is
relevant, which is to be kept in sight whereby it is specifically provided that Officer Incharge
of Police Station, shall reduce into writing, every information given to him, either written or oral, relating to commission of a cognizable offence. Sectio n 154, Cr.P.C. states as under:
“154, Cr.P.C. Information in cognizable cases . Every information relating to the
commission of a cognizable offence if given orally to an officer Incharge of a police-station, shall be reduced to writing by him or under his direction, and be read over to the informant, and every such information, whether given in writing or reduced to writing as aforesaid shall be signed by the persons giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf.”
11. Keeping in view the above quoted provision, it is the statutory duty of Officer Incharge of Police Station, to reduce in writing the information provided to him, about commission of
an offence cognizable in nature. While Section 155, Cr.P.C. deals with the information received in respect of an offence being non -cognizable in nature. While Section 156, Cr.P.C.
provided the procedure, required to be adopted by an officer Incharge of Police Station to
investigate in a cognizable case reported to him. It is to be noted that, investigation is to be made, only after recording the First Information Report.
12. In the case in hand, this procedure has not been adopted. There is nothing on record that
any such report was submitted to the concerned Court, or other steps, as provided therein, were taken. Rather, on first instance the information given by the petitioner about commission of offence remained unattended, while later in time, as pe r order of Justice of
Peace, some inquiry was conducted but with no results. The report of inquiry filed before the Court is of less importance as it does not amounts to an investigation as provided under Section 157, Cr.P.C., rather the report only based on narration of the facts as made in statement of the petitioner, or as described by the nominated persons. As such mere narration of facts, does not serve the purpose. The Officer Incharge of Police Station was required to arrive to a decision that whethe r any cognizable offence is made out or not, if so, MR was to
be registered. But there is complete failure on part of the concerned authorities. Rather, apart from the complaint/statement of the petitioner, keeping in view the contents of the report, it is
apparent that some offence of cognizable nature has been made out, which was required to be registered.
13. The learned counsel for the petitioners while arguing the matter relied upon the Judgment
of Hon’ble Supreme Court made in Civil Petition titled a s “Muhammad Bashir Vs Station
House Officer” , reported in PLD 2007- SC Page -539, wherein provision of Section 22- A,
Cr.P.C., Sections 150, 154, 155. 157, Cr.P.C., have been discussed at length and provide complete guidance in such like cases, which is very much relevant in present case. It has been
observed by the Honorable Supreme Court that:
“12. The Scheme of law which becomes apparent from a bare perusal of these provisions is that whenever an Officer Incharge of a Police Station receives some informatio n about the commission of an offence, he is expected first to find out
whether the offence disclosed fell into the category of cognizable offence or was one which was non- cognizable. And once he was through with this exercise then the word
“SHALL “appearin g in the said provisions of Section 154, Cr.P.C. would take over
which obliged, the S.H.O, thereafter to reduce the said information to writing in the
First Information Report Register as, what is called by Chapter XXIV of the Police
Rules of 1934, a F.I.R , if the offence disclosed was cognizable or else to merely
record the same in the Station Diary as mentioned by Section 155(1) of the Cr.P.C.
and Rule 24.3 of the said Rules and refer the informant to the competent Magistrate if the offence be non -cogniza ble. As has been mentioned above Sections 154 and 155 of
the Cr.P.C. are the only two provisions in the said Code which talk about the manner in which an information received by a S.H.O. relating to the commission of an offence was to be treated.
13. It m ay be reiterated and even emphasized that there was no provision in any law,
including the said Section 154 of the Cr.P.C. which authorized an Officer -Incharge of
a Police Station to hold any enquiry to assess the correctness or the falsity of the informat ion received by him before complying with the command of the said
provisions, which obliged him to reduce the same into writing irrespective of the fact whether such an information was true or otherwise.
14. The wisdom was not far to find. If the S.H.O. w as given the authority to
determine the truthfulness or the falsehood of the allegations leveled against some one
and thereafter to decide to record or not to record such allegation as F.I.R, then such a police officer would have got blessed with the power to decide about the guilt or
innocence of an accused person. This was, however, far from the envisaged by the law-makers regarding the identification and the consequent acquittal or conviction of
accused persons as the said task stood assigned only to the Courts of law and had
never been conceded to police officers.”
The Hon’ble Supreme Court further observed: --
37. We know that the prescribed forum for the determination of the correctness or falsity of the accusation leveled against some one was a Court of law and not a police man or even an Ex -officio Justice of the peace irrespective of his rank and status. And
we also know from the provisions of Section 190(1) of the Cr.P.C. that the lodging of an F.I.R. and the report consequently submitted by a polic e officer under Section 173,
Cr.P.C. was only one of the three modes of reaching the prescribed competent Court for such a determination. The other two channels being a private complaint and a suo moto action taken by the authorized Magistrate leading to t he taking of cognizance.
38. And if an Ex -officio justice of the Peace who also happens to be the higher of the
two subordinate Courts and a trial Court with respect to certain offences and an appellate and a Revisional Court in other, was to declare, like it was done in the present case, that no offence at all had been committed and that the accusation were
false and that also on the basis of a mere report by a police officer without any
evidence having been examined by a Court of Law then we would not only be shutting out of the other two channels which had been made available by law but would also be deciding the fate of criminal cases in a manner never visualized by the law even in the wildest of their dreams.
Arriving to the conclusion it was held: --
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 off ence 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, and no more. Offering any other interpretation to the provisions in question would be doing violence to the entire sch eme of the Cr.P.C. which would not be permitted. “
14. In view of the verdict of the Honorable Supreme Court, the initial requirement, which is
to be seen by an Officer Incharge of Police Station, whether commission of cognizable
offence, is made out, on basis of the information received by him, the second step would be
to reduce the same into writing, whereafter, investigation is to be carried out, and report be
submitted to the concerned Court as provided in above mentioned sections. Thus, there is no
concept of making inquiry before registration of FIR, with exception as provided under
Sections 157 and 159, Cr.P.C. In the case in hand offences of murder is alleged against the proposed accused persons, by the petitioner, thus in the circumstances, the Tehsildar was not empowered, to refuse registration of FIR. The learned Additional Session Judge, while exercising the powers under Section 22- A, Cr.P.C., completely failed to understand the
nature of the powers conferred to him under provisions of Section 22- A, Cr.P.C. Thus, failed
to exercise the powers vested in him. The impugned order in the present petitions is in complete negation of law, which cannot remain in field.
For the reasons discussed hereinabove, the petitions are accepted and the impugned orde r
dated 30th November 2016 is hereby set -aside. The Tehsildar Levies Thana Gulistan District
Qillah Abdullah is directed to immediately register the FIR against the proposed accused
persons named by the petitioners in the application under Section 22- A, Cr .P.C. and to
transmit the same to Crimes Branch Quetta for further investigation strictly in accordance
with law.
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