2011 P Cr. L J 1948
[Quetta]
Before Abdul Qadir Mengal, J
BOSTAN and another ---Petitioners
Versus
THE STATE and another ---Respondents
Criminal Miscellaneous Quashment Petition No.51 of 2011, decided on 24th Aug ust,
2011.
(a) Criminal Procedure Code (V of 1898) ---
----Ss. 22 -A, 154, 157, 158, 159 & 561 -A---Quashing of order, petition for ---Petitioner
had sought quashing of order passed by Ex -officio Justice of Peace, whereby
application filed by respon dent under S.22 -A, Cr.P.C. was accepted and S.H.O.
concerned was ordered to register the F.I.R. against the petitioners ---Contention of
counsel for the petitioners was that if Police Officer had suspected commission of
cognizable offence in respect of inf ormation received under S.154, Cr.P.C., then he could
decline to register the case and submit the investigation report to the Magistrate in view
of S.158, Cr.P.C.; and then it was the duty of the Magistrate under S.159, Cr.P.C. to hold
investigation or pre liminary inquiry or otherwise dispose of the matter as provided under
Cr.P.C. ---Contention of counsel for the petitioners seemed devoid of force as counsel had
intermingled the provisions of S.154, Cr.P.C. with the provisions of S.157, Cr.P.C. ---
Under the provisions of S.154, Cr.P.C., the S.H.O./Police Officer was bound to register
the case against accused, irrespective of fact that the information, which he had received
was correct or otherwise; whereas S.157, Cr.P.C. was an independent section, which
woul d start operating after the registration of the F.I.R., and thereafter if S.H.O. suspected
that information was false or frivolous, then he could make an investigation in respect of
a cognizable matter and submit his report to Magistrate under S.158, Cr.P. C.---
Magistrate, then could hold fresh investigation or preliminary inquiry under S.159,
Cr.P.C. or dispose of the same in accordance with law.
PLD 2007 SC 539 ref.
PLD 2007 SC 539 rel.
(b) Criminal Procedure Code (V of 1898) ---
----Ss. 22 -A & 561 -A---Quashing of order, petition for ---Functions of Justice of Peace ---
Nature ---Function of Ex -officio Justice of Peace under S.22 -A(6), Cr.P.C., was of
administrative or ministerial nature and not of Judicial character ---Objection of the
petitioner that imp ugned order passed by Justice of Peace, was not a speaking order; and
that he had not been given proper opportunity of hearing, had no weight ---Order of
Justice of Peace needed no interference under S.561 -A, Cr.P.C. ---Exercising the power
under S.561 -A, C r.P.C., to determine the fate of a criminal case, was a serious departure
from the normal course ---Any deviation from the normal course was always pregnant
with the risk of being led astray ---Mere claim of innocence by an accused, could never be
considered sufficient to justify such a departure, because, if that was so permitted; then
every accused would opt to stifle the prosecution; and to have his guilt or innocence
determined under S.561 -A, Cr.P.C. ---Powers under S.561 -A, Cr.P.C., ordinarily, only
could be used where no provision existed in the Code to cater for a situation; or where the
Code offered no remedy for the redressal of the grievance ---In the present case, remedy
was for the petitioner in case of non -availability of evidence or claiming of his innocence
was that he could file at any stage an application for his acquittal under the provisions of
S.249 -A or S.265 -K, Cr.P.C. ---Petition was dismissed.
Ahsan Rafiq Rana for Petitioners.
Ajmal Khan Kakar for Respondent No.2.
Abdul Sattar Durrani, Additional Prosecutor -General for the State.
Date of hearing: 19th August, 2011.
JUDGMENT
ABDUL QADIR MENGAL, J .---This Criminal Miscellaneous Quashment
Petition under section 561 -A, Cr.P.C. has been filed against the order dated 25 -6-2011,
passed by t he learned Additional Sessions Judge -VI, Quetta, whereby the application
under section 22 -A, Cr.P.C. filed by the private respondent was accepted and the S.H.O.
Police Station, Satellite Town, Quetta was directed to register the F.I.R. against the
petition ers.
2. Brief facts leading to file, the present petition are that, the respondent No.2
Khuda -e-Dad Khan son of Sher Muhammad, on 17 -6-2011 moved an application
under section 22 -A, Cr.P.C. in the Court of Sessions Judge, Quetta, alleging therein th at
on 16 -6-2011, four persons including the petitioners came into their house, who were
armed with Kalashnikov and pistols. They put him in fear of hurt and made fires,
however, luckily the applicants were saved. The culprits snatched Rs.50,000 from the
applicant and gold ornaments from the wife of the applicant and also damaged other
household articles amounting to Rs.30,000. On hearing of the firing reports, the residents
of the area came and saved them from the culprits. The applicant went to police stat ion
for registration of F.I.R., but police did not register the F.I.R. The application of the
respondent was transferred to the file of learned Additional Sessions Judge -VI, Quetta for
hearing. Learned Additional Sessions Judge -VI, Quetta issued notice to S.H.O. and also
directed him to file report on or before 26 -6-2011. The S.H.O. concerned filed his report,
in which it was specifically mentioned that there is a matrimonial dispute between the
parties. However, the learned Additional Sessions Judg e-VI, Quetta, after hearing
the parties directed the S.H.O. to register the case against the petitioner. Against which
the petitioners have filed the present petition before this Court, on the following grounds;
A. That order dated 25 -6-2011 is pate ntly illegal and against the principles of justice,
because no reason at all advanced or given by the learned Court for acceptance of
the application.
B. That there was no any material available on record from where it can be inferred
that the incident had taken place as alleged by the respondent No.2.
C. That the petitioners have been condemned unheard, though the counsel for the
petitioners filed his Vakalat Nama on 25 -6-2011, but, he was not properly heard
and the impugned order was passed.
D. That the r eport of S.H.O. is that the respondent No.2 wants to settle matrimonial in
garb of criminal case. So being, the Additional Sessions Judge was bound to
refrain to pass such order, therefore, learned counsel for the petitioners has prayed
that this court may be pleased to accept the request of the petitioners and quash the
proceeding under section 561 -A, Cr.P.C. by setting aside the order dated 25 -6-
2011.
3. On the other hand, Mr. Ajmal Khan Kakar Advocate, learned counsel for the
private respondent, repudiat ed the contention of learned counsel for the petitioners,
stating that it was not necessary for Ex -Officio Justice of Peace to issue notice to accused
or to police officer or anybody, because the powers of the Justice of the Peace are very
limited and they have been given to him to aid, assist or authorize the criminal
jurisdiction system of the country under section 154, Cr.P.C. The S.H.O. was bound to
record the F.I.R. in cognizble cases, irrespective that information was false or correct. In
this respect learned counsel relied on 2007 PLD SC 539.
4. After hearing both the parties, I have also perused the relevant laws in respect of
the registration of the F.I.R. under section 154, Cr.P.C. so as also considered the section
157, Cr.P.C. As according to lear ned counsel for the petitioners that a police officer
in view of section 157, Cr.P.C. if seems commission of cognizable offence is suspected
in respect of information received under section 154, Cr.P.C., then he could decline to
register the cas e and submit the investigation report to the Magistrate in view of section
158, Cr.P.C. and then it is the duty of the Magistrate under section 159, Cr.P.C. to hold
investigation or preliminary inquiry or otherwise dispose of the matter provided under the
Cr.P.C. The contention of learned counsel for the petitioners on this point, seems devoid
of the force and it appears that learned counsel intermingle the provisions of section 154,
Cr.P.C. with the provisions of section 157, Cr.P.C. under the provisions o f section 154,
Cr.P.C. the S.H.O./Police Officer is bound to register the case against accused
irrespective of that the information, which he has received is correct or otherwise, as
same is evident from the PLD 2007 SC 539. Whereas section 157, Cr.P.C. is an
independent section, which starts after the registration of the F.I.R. and thereafter the
Police Officer or S.H.O., if suspects that information is false or frivolous, then he could
make an investigation in respect of a cognizable matter and submit his report to
Magistrate under section 158, Cr.P.C. It is then up to Magistrate to hold fresh
investigation or preliminary inquiry under section 159, Cr.P.C. or dispose of the
same in accordance with law. Thus in view of above when, adverting to the
objections of learned counsel for the petitioners, it may be pointed out that under section
22-A(6), Cr.P.C. the Ex -officio Justice of the Peace function as an administrative or
ministerial nature of functions and not in a Judicial character. So bei ng, the objection of
learned counsel that the impugned order dated 25 -6-2011, passed by the learned
Additional Sessions Judge -VI, Quetta is not speaking order or he has not been given
proper opportunity of hearing, having no any relevancy or weight in th e circumstances of
the matter, as such, order of the learned Additional Sessions Judge -VI, Quetta needs no
interference under the provisions of section 561 -A, Cr.P.C.
5. It may be noted that exercising the power under section 561 -A, Cr.P.C. to
determine th e fate of a criminal case is thus a serious departure from the normal course
and needless to say that any deviation from the normal path is always pregnant with risk
of being led astray. Mere claim of innocence by an accused person can never be
considered sufficient to justify such a departure, because if this was so permitted, then
every accused person would opt to stifle the prosecution and to have his guilt or
innocence determined under section 561 -A, Cr.P.C. The powers under section 561 -A,
Cr.P.C. ordin ary, only could be used where no provision exists in the code to cater for a
situation or where the code offers no remedy for the redress of the grievance. Whereas, in
the present case there is a remedy for the petitioners in case of non -availability of
evidence or claiming of his innocence, he could file at any stage an application for his
acquittal under the provisions of section 249 -A, Cr.P.C. or section 265 -K, Cr.P.C. So
being, the present criminal miscellaneous quashment petition has no force and the same is
dismissed.
H.B.T./97/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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