2012 P Cr. L J 288
[Balochistan]
Before Muhammad Hashim Khan Kakar, J
Haji REHMATULLAH and a nother ---Petitioners
Versus
THE STATE ---Respondent
Criminal Quashment Nos. 20 and 21 of 2011, decided on 15th November, 2011.
(a) Criminal Procedure Code (V of 1898) ---
----Ss. 22 -A & 561 -A---Penal Code (XLV of 1860), S.302 ---Qatl-e-amd---Regis tration of
case---Powers of Justice of Peace ---Scope ---Powers had been given to Justice of Peace under
S.22-A, Cr.P.C. to direct the Police Officials to record the statement in the prescribed
register, if a cognizable offence was made out ---Said powers wer e very limited, and while
exercising such powers, Justice of Peace should not enter into disputed question of facts to
find out the truth ---Justice of Peace, in appropriate cases, depending upon the circumstances
thereof, could refuse to issue a direction regarding registration of F.I.R. and dismiss the
complaint but it was not expected and required to allow the request of complainant
mechanically, blindly and without application of legal mind ---Justice of Peace, in the present
case, had passed impugned ord er in a slipshod manner without any reference to the unnatural
death of deceased who was killed by accused persons without any justification and legal
authority ---If the vehicle in question was not stopped by the injured, the F.C. personnel could
have targ eted the tyres of the vehicle in order to intercept the same ---No one could be
allowed to take the law in his own hands and start awarding punishment to the culprits
instead of taking them to the competent court of law ---Tehsildar concerned was legally bou nd
under S.154, Cr.P.C. to record the statement of complaining person in the prescribed
register ---Justice of Peace had not given valid reasons for his conclusion to dismiss
the application of complainant and his order was perver se, arbitrary and was in
complete negation of law which was set aside with direction to the Tehsildar concerned to
register F.I.R. against the accused and proceed with the matter in accordance with law.
(b) Criminal Procedure Code (V of 1898) ---
----S. 154 ---Information in cognizable cases ---If information related to the commission of a
cognizable offence, same would fall under S.154, Cr.P.C. and the Police Officer was under
statutory obligation, without entering into inquiry and without heari ng the accused person, to
enter it in the prescribed register ---Only precondition needed for such exercise was that the
information should disclose a cognizable offence on the face of the allegations ---Failure of
the concerned Police Officer to register a complaint, so made, would amount to failure to
discharge statutory obligation.
Muhammad Riaz Ahmed for Petitioners (in both Criminal Quashment Petitions)
Abdul Karim Malghani along with Ghulam Mustafa Raisani, Tehsildar Taftan for the State
(in both C riminal Quashment Petitions)
Date of hearing: 11th November, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---These petitions under section 561 -A of the
Cr.P.C. have been directed against the order dated 19th February, 2011, passed by the
Additional S essions Judge, Dalbandin at Noshki, in his capacity as Justice of the Peace,
whereby he dismissed the applications moved by the petitioners, under section 22 -A of the
Cr.P.C., seeking registration of a case against Sobedar Ali Zar Shah and his companions f or
the commission of murder of Ghulam Sarwar and causing injuries to Khan Jan.
2. The relevant facts are that a case vide F.I.R. No.1 of 2011 was registered at Levies Thana,
Taftan, District Chagai on 6th January, 2011 at about 11 -45 p.m., on the complai nt of
Sobedar Ali Zar Shah, 109 Wing, Kharan Rifles Taftan, under section 9(c) of the Control of
Narcotic Substances Act, 1997, with the averments that on the day of incident, he, along with
other officials, was on routine patrolling. In the meanwhile, a T oyota Pickup, which was
going towards Iran with off lights, was signaled to stop, but it did not. After making fires, the
vehicle was stopped, which was taken into custody and searched, resulting into recovery of
150 kilograms of opium and one pistol. Duri ng firing, one Ghulam Sarwar died, while Khan
Jan, driver of the vehicle, sustained firearm injuries.
3. As per petitioners, the incident did not take place in a manner as alleged by the
complainant in the F.I.R. As a matter of fact, deceased Ghulam Sarw ar was doing business of
birds and on the fateful night at about 8 -00 p.m. he, along with his labour, namely, Abdullah
was proceeding towards Talab Wahsab, when the FC personnel, without any reason and
lawful authority, appeared and opened fire upon the ve hicle, due to which, deceased Ghulam
Sarwar succumbed to the injuries on the spot, while the driver of the vehicle Khan Jan got
injured. The matter was reported to the law -enforcing agencies at Taftan, but the authorities
refused to register a case against the nominated accused persons. The petitioner then
approached the Additional Sessions Judge/Justice of the Peace, by means of filing an
application under section 22 -A of the Cr.P.C., who also declined to order for registration of
the case, hence, these pe titions.
4. Mr. Muhammad Riaz Ahmed, learned counsel for the petitioners, argued that the
allegations levelled in the complaint disclosed the commission of a cognizable offence and
the Tehsildar was under legal obligation under section 154 of the Cr.P.C. to register a case
against the accused persons. He further argued that the Justice of the Peace was not to
analyze the allegations laid before him in order to determine the truth or falsity of the
complaint and he has failed to exercise its powers by decl ining to pass the directions sought
for.
5. On the contrary, Mr. Abdul Karim, Advocate, representing the State, feebly contended
that the Ex -Officio Justice of the Peace has rightly exercised its powers and he has
the authority to de cline registration of the F.I.R., if no cognizable offence has been
made out.
6. The record reveals that impugned order dated 19th February, 2011 has been made on the
applications filed by the petitioners under the provisions of section 22 -A of the Cr.P.C.,
which speaks as under: --
"22-A. Powers of Justice of the Peace. ---(1) A Justice of the Peace for any local area shall,
for the purpose of making an arrest, have within such area all the powers of a Police Officer
referred to in section 54 and an officer in -charge of a police -station referred to in section 55.
(2) A Justice of the Peace making an arrest in exercise of any powers under subsection (1)
shall, forthwith, take or cause to be taken the person arrested before the officer in -charge of
the nearest police -station and furnish such officer with a report as to the circumstances of the
arrest and such officer shall thereupon re -arrest the person.
(3) A Justice of the Peace for any local area shall have powers, within such area, to cal l upon
any member of the police force on duty to aid him:
(a) in taking or preventing the escape of any person who has participated in the commission
of any cognizable offence or against whom a reasonable complaint has been made or credible
information h as been received or a reasonable suspicion exists of his having so participated;
and
(b) In the prevention of crime in general and, in particular, in the prevention of a breach of
the peace or a disturbance of the public tranquillity.
(4) Where a membe r of the police force on duty has been called upon to render aid under
subsection (3), such call shall be deemed to have been made by a competent authority.
(5) A Justice of the Peace for any local area may, in accordance with such rules as may
be made by the Provincial Government:
(a) Issue a certificate as to the identity of any person residing within such area, or
(b) Verify any document brought before him by any such person, or
(c) attest any such document required by or under any law for the time being in force to be
attested by a Magistrate, and until the contrary is proved, any certificate so issued shall be
presumed to be correct and any document so verified shall be deemed to be duly verified, and
any document so attested shall be deemed to have been as fully attested as if he had been a
Magistrate.
(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) Tr ansfer 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"
From the afore -quoted provisions of law, it is crystal clear that under section 22 -A and 22 -B
of the Cr.P.C., powers are given to the Ex -Officio Justice of the Peace to direct the police
officials to record the statement in the prescribed register, if a cognizable offence is made out.
These powers are very limited and, while exercising such powers, the Ex -Officio Justice of
the Peace should not enter into disputed question of facts to find out the truth. It is true that in
appropriate case depending upon the circumstances thereof, an Ex -Officio Justice of the
Peace may refuse to issue a directions regarding registration of F.I.R. and may dismiss the
complaint under section 22 -A of the Cr.P.C. and is not expected and required to allow the
request of complainant mechanically, blindly and without application of legal mind, but
it is equally true that the Justice of the Peace has passed the impugned order in a
slipshod manner without any reference to the unnatural death of deceased Ghulam
Sarwar, who was killed by the proposed accused persons without any justification and
legal authority. I am of the view that if the vehicle was not stopped by injured Khan Jan, the
F.C. personnel could have targeted the tyres of the vehicle in order to intercept the same. It is
a settled principle of law that no one can be allowed to take the law in his own hands
and starts awarding punishment to the culprits, instead of taking them to the competent
Courts of law. Neither any individual nor the law -enforcing agencies can be granted license
to award puni shments beyond the purview of the law of the land. Be that as it may, I am of
the considered view that the Justice of the Peace has failed to exercise its powers under
section 22 -A of the Cr.P.C.
7. Similarly, respondent No.1 i.e. Tehsildar Taftan was al so legally bound under section
154 of the Cr.P.C. to record the statement of complaining person in the prescribed register,
which speaks as under: --
"154. Information in cognizable cases. ---Every information relating to the commission of a
cogniz able offence if given orally to an officer incharge of a police station, shall be reduced
to writing by him or under his directions, 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 person 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."
From the perusal of aforesaid provisions of law, it, thus, f ollows 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, without entering into inquiry and without
hearing the accused persons, to enter it in the prescribed register. For this exercise, the only
precondition need is that the information should disclose a cognizable offence, on the face of
the allegations. Failure of the concerned police officer to register a complaint, so made,
amoun ts to failure to discharge statutory obligations.
8. For the aforesaid reasons, I am of the view that the Ex -Officio Justice of the Peace has not
given valid reasons for his conclusion and the order impugned herein is perverse, arbitrary
and is in comple te negation of the law, which is, accordingly, set aside. Tehsildar, Taftan is
directed to register an F.I.R. against the proposed accused persons and proceed with the
matter strictly in accordance with law.
Petitions are allowed and these are the reason s of my short order dated 11th November, 2011
announced in the open Court.
H.B.T./152/Q Petitions 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.