2012 P Cr. L J 1458
[Balochistan]
Before Muhammad Hashim Khan Kakar, J
MUHAMMAD ALAM ---Petitioner
Versus
NOOR MUHAMMAD and 2 others ---Respondents
Criminal Quashment No.60 of 2012, decided on 31st May, 2012.
Criminal Procedure Code (V of 1898) ---
----Ss. 22- A(6), 22 -B & 561- A---Powers of Justice of Peace to issue directions for registration of
F.I.R. ---Scope ---Complainant filed application under S.22- A, Cr.P.C. against the accused
(petitioner) ---Justice of Peace gave directions to the Tehsildar concerned to lodge an F.I.R.
against the accused, in spite of the fact that the Tehsildar had already submitted his report
regarding the incident, wherein the allegations le velled against the accused were found to be
false and baseless ---Validity ---Perusal of Ss.22- A(6) and 22- B, Cr.P.C., clearly demonstrated
that Ex -Officio Justice of Peace could only issue directions, when there was a complaint in
respect of non -registratio n of a case and if such complaint was brought before him, then he could
simply direct that the police had to act in accordance with the law and entertain the complaint, and if a cognizable case was made out, then to take further action in accorda nce with the
law--- Provisions of S.22- A(6), Cr.P.C. did not make it obligatory for an Ex- Officio Justice of
Peace to necessarily or in a blind fold manner issue directions regarding registration of a criminal
case whenever a complaint was filed before him ---Word 'may' used in S.22- A(6), Cr.P.C. clearly
showed that the jurisdiction of Ex- Officio Justice of Peace in that regard was discretionary in
nature ---Ex -Officio Justice of Peace could simply direct that the police had to act in accordance
with the law and entertain the complaint and if a cognizable offence was made out, then to take
further action in accordance with the law and it would not be proper for the Justice of Peace to issue directions for registration of case as that would prejudice an accused---Tehsildar had
opined unequivocally that the application under S.22- A, Cr.P.C., filed by the complainant was
absolutely false and baseless, in view of which there was no justification left for the Justice of
Peace directing registration of case against t he accused ---Petition for quashing proceedings was
allowed, impugned order of the Justice of Peace was set aside with directions to the Tehsildar to
entertain the complaint of the complainant and if a cognizable offence was made out, then to
register a cas e.
Muhammad Bashir v. Station House Officer, Okara Cantt. PLD 2007 SC 539 and Khizar Hayat
v. Inspector -General of Police (Punjab) Lahore PLD 2005 Lah. 470 rel.
Muhammad Baqir Bakhtiar for Petitioner.
Miss Tayyaba Iltaf, Additional Public Prosecutor for the State.
Date of hearing: 18th May, 2012.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---Mr. Muhammad Baqir Bakhtiar , learned
counsel for the petitioner, inter alia, contended that respondent No.1, through his brother, viz.
Moulana Mansoor, filed an application under section 22- A of the Criminal Procedure Code,
1898 (Cr.P.C.) against the petitioner in the Court of Sessi ons Judge, Lasbella at Hub/Justice of
the Peace (the "trial Court"), who directed Tehsildar, Kandraj to lodge an F.I.R. against the petitioner, in spite of the fact that Tehsildar concerned has already submitted his report regarding the incident, wherein t he allegations levelled against the petitioner were found to be false and
baseless. He further submits that the trial Court, instead of directing the police to entertain the grievance of complainant, conducted an inquiry and passed the order dated 15th February, 2012 (the "impugned order") in a slipshod and cursory manner, without adhering to the relevant provisions of section 22 -A and 22 -B of the Cr.P.C. He also submits that no offence of any nature
has been committed and the accusations are false, in view of the report submitted by Tehsildar
concerned before the trial Court. He next contended 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 informatio n disclosed by the complainant did or did not constitute a
cognizable offence and if it did then to direct concerned Tehsildar to record an F.I.R. without going into the veracity of the information in question. He lastly stated that it was not proper for the Ex -Officio Justice of the Peace to issue direction for registration of a case, as it has
prejudiced the petitioner in all respects.
2. Miss Tayyaba Iltaf, learned Additional Public Prosecutor, when was confronted with the
contentions raised by learned counsel for the petitioner, could not rebut the same and candidly
conceded that it would be appropriate to direct Tehsildar concerned to entertain the complaint of the complainant and if cognizable offence is made out, then to register a case, while in ca se of
falsehood to initiate legal action under section 182 of the Pakistan Penal Code, 1860 (P.P.C.) against the complainant by referring the matter to concerned Magistrate.
3. Before touching merits of the case, for the purpose of facility and better un derstanding of
the proposition of law, it would be appropriate and advantageous to reproduce herein below sections 22- A(6) and 22- B of the Cr.P.C., which speak as under: --
"(22-A) ........
(6) An Ex -Officio justice of the Peace may issue appropriate d irections 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
(iii) neglect, failure or excess committed by a police authority in relation to its functions and
duties. (22-B). Duties of Justices of the Peace. Subject to such rules as may be made by the Provincial
Government, every Justice of the Peace for any local area shall,
(a) on receipt of information of the occurrence of a ny incident involving a breach of the
peace, or of the commission of any offence within such local area, forthwith make inquiries into the matter and report in writing the result of his inquiries to the nearest Magistrate and to officer -
in-charge of the ne arest police- station.
(b) if the offence referred to in clause (a) is a cognizable offence, also prevent the removal of
any thing from, or the interference in any way with, the place of occurrence of the offence;
(c) when so required in writing by a police -officer making an investigation under Chapter
XIV in respect of any offence committed within such local area.
(i) render all assistance to the police -officer making such an investigation.
(ii) record any statement made under expectation of death by a person in respect of whom a
crime is believed to have been committed." 4. A bare perusal of the aforesaid provisions of l aw clearly demonstrate that an Ex -Officio
Justice of the Peace can only issue directions, when there is a complaint in respect of non-
registration of a case and if such complaint is brought before him, then he can simply direct that the police has to act i n accordance with law and entertain the complaint of a complainant and if a
cognizable case is made out, then further action be taken in accordance with law.
5. It will not be proper for the Ex- Officio Justice of the Peace to issue direction for
registra tion of a case as that will prejudice an accused person in all respects, as the registration of
a case would be on the direction of a Sessions Judge in the capacity of Ex -Officio Justice of the
Peace and subordinate Courts would not be in a position to do the complete justice. Similarly, the levies/police officials will also register the F.I.R. blind foldedly without conducting initial investigation before converting a complaint in to an F.I.R. By holding this view, I fortified from a case of Muhammad Bashi r v. Station House Officer, Okara Cantt. PLD 2007 SC 539, the
relevant portion whereof is reproduced herein below: --
"(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 accusations were false and that also on the basis of a mere report by the police officer without any evidence having been examined by a Court of Law then
we would not only be shutting out 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 makers even in the wildest of their dreams.
(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 i nformation
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, and no more. Offering any other inter pretation to the provisions in question would'
be doing violence to the entire scheme of the Cr.P.C. which could not be permitted."
6. So far as the complaint regarding failure of respondent No.2 i.e. Tehsildar, Kandraj to
register a criminal case despit e commission of a cognizable offence having been reported to him,
the provisions of section 154, of the Cr.P.C., in that respect are quite explicit and the duty of the officer -in-charge of levies station in that regard is mandatory in nature. However, it m ay be
added that the officer -in-charge of the relevant levies station may be under statutory obligation to
register an F.I.R., whenever information disclosing commission of a cognizable offence is provided to him, but the provisions of section 22- A(6) of t he Cr.P.C. do not make it oblimatory
for an Ex -Officio Justice of the Peace to necessarily or blind folderly issue a direction regarding
registration of a criminal case whenever a complaint is filed before him in that regard. The use of the word "may" in s ection 22- A(6),clearly shows that the jurisdiction of an Ex- Officio Justice of
the Peace in that regard is discretionary in nature. The Ex -Officio Justice of the Peace could
simply direct, that police has to act in accordance with law and entertain the com plaint of a
complainant and if a cognizable offence was made out, then further action be taken in accordance with law and it would not be proper for the Justice of the Peace to issue direction for registration of case as that would prejudice an accused. It has been observed with great concern
that in our society, the machinery of criminal law with its coercive process is increasingly being utilized by motivated persons for achieving objectives, which are self serving, thus,
there is pressi ng need on the part of the Ex- Officio Justice of the Peace to be highly
careful before issuing a direction regarding registration of a criminal case. In this regard, reference can be made to a case of Khizer Hayat v. Inspector -General of Police (P unjab) Lahore,
PLD 2005 Lahore 470.
7. It may also be observed that the trial Court, before issuing the impugned direction, called
for comments of concerned Tehsildar i.e. in- charge of levies station in respect of genuineness
and authenticity of the complaint, wherein it was opined unequivocally that the application under section 22- A of the Cr.P.C. filed by the complainant is absolutely false and baseless, thus, in
such view of the matter, there was no justification for the trial Court, directing registr ation of
F.I.R. against the petitioner. In the attending circumstances and keeping in view the nature of story, which is, otherwise, repellant to a common sense, the trial Court should have refused to issue a direction regarding registration of a criminal case, reminding the complaining person of his alternate statutory remedies under sections 156(3) and 190 of the Cr.P.C. After submission of comments by Tehsildar, who himself was not convinced of the complainant's allegations being correct, there was no occasion, with the trial Court, forcing the police to register a criminal case against the petitioner.
8. For the aforesaid discussion, I am of the considered view that the impugned order is not
sustainable, therefore, this petition is allowed and the order dated 15th February, 2012, passed by learned Sessions Judge, Lasbella at Hub is set aside, with direction to concerned Tehsildar to
entertain complaint of the complainant and if cognizable offence is made out, then to register a
case, while in case of f alsehood etc. proper course be adopted by taking appropriate legal action
as required under section 182 of the P.P.C. and by referring the matter to the concerned Judicial Magistrate.
These are the reasons of my short order dated 18th May, 2012 announced in the open Court.
M.W.A./39/Q Petition allowed.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,
let us know.