Muhammad Humayun V. The Station House Officer (SHO) Police Station Jinnah Town, Quetta and another,
Bench: Zaheer Ud Din Kakar
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This case involved a man, Muhammad Humayun, whose father had been booked in an FIR by the FIA for offences under the cybercrime law (PECA) and related sections. The petitioner claimed that when he appeared before the Investigating Officer after being summoned, he was beaten and abused. He said he complained to a Judicial Magistrate, was referred for a medical examination, and later tried to get an FIR registered against the Investigating Officer for assaulting him. When the police allegedly refused to register his complaint, he approached the Sessions Judge acting as Ex-Officio Justice of the Peace under section 22-A of the Criminal Procedure Code, asking for an FIR to be ordered. That application was dismissed, and he challenged this dismissal before the Balochistan High Court.
The High Court upheld the dismissal. It found that the petitioner's application lacked basic details, such as the date, time, and location of the alleged beating, or which part of his body was injured. More importantly, the court noted that he had never first approached the local police station (SHO) with his complaint before going to the Justice of Peace, which the law requires. Only if the SHO refuses to act can a person turn to the Justice of Peace, and even then, they should typically first escalate to higher police officials.
The judgment reinforces that courts will not order FIR registration unless a complainant has followed the proper procedural sequence and provided sufficient factual detail, and that a well-reasoned order by a Justice of Peace will not be disturbed without clear illegality.
یہ مقدمہ محمد ہمایوں نامی ایک شخص سے متعلق ہے جس کے والد کے خلاف ایف آئی اے نے سائبر کرائم کے قانون (پیکا) اور متعلقہ دفعات کے تحت ایف آئی آر درج کی تھی۔ درخواست گزار کا کہنا تھا کہ جب وہ طلب کیے جانے پر تفتیشی افسر کے سامنے پیش ہوا تو اسے مارا پیٹا گیا اور گالیاں دی گئیں۔ اس کا کہنا تھا کہ اس نے اس بارے میں جوڈیشل مجسٹریٹ سے شکایت کی، جس پر اسے طبی معائنے کے لیے بھیجا گیا، اور بعد ازاں اس نے تفتیشی افسر کے خلاف حملے کے الزام میں ایف آئی آر درج کروانے کی کوشش کی۔ جب مبینہ طور پر پولیس نے اس کی شکایت درج کرنے سے انکار کر دیا تو اس نے ضابطہ فوجداری کی دفعہ 22-A کے تحت ایکس آفیشیو جسٹس آف پیس کی حیثیت سے کام کرنے والے سیشن جج سے رجوع کیا اور ایف آئی آر درج کروانے کا حکم دینے کی استدعا کی۔ یہ درخواست مسترد کر دی گئی، جس کے خلاف اس نے بلوچستان ہائی کورٹ میں چیلنج کیا۔
ہائی کورٹ نے درخواست کے مسترد ہونے کے فیصلے کو برقرار
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2018 P Cr. L J 450 [Balochistan] Before Mrs. Syeda Tahira Safdar and Zaheer- ud-Din Kakar, JJ MUHAMMAD HUMAYUN--- Petitioner Versus The STATION HOUSE OFFICER (SHO) POLICE STATION JINNAH TOWN, QUETTA and another ---Respondents C.P. No. 267 of 2017, decided on 22nd September, 2017. (a) Criminal Procedure Code (V of 1898) --- ----Ss. 22- A & 22 -B---Application for registration of case to Ex -Officio Justice of Peace--- Dismissal of such application ---Record showed that a criminal case was registered agains t father of applicant and he was called by Investigating Officer through notice under S. 160, Cr.P.C.---Stance of applicant was that when he appeared before the Investigating Officer, he started beating him severely and thereafter, he moved an application against the Investigating Officer before Judicial Magistrate, who referred him to Civil Hospital for medical checkup --- Contents of the said application revealed that the applicant did not mention date and time of the alleged incident, even he had failed to assign as to on which part of his body he sustained injuries ---Applicant without approaching the SHO concerned had filed application under S. 22- A, Cr.P.C. before the Ex -Officio Justice of Peace ---Circumstances established that applicant failed to point out any illegality or infirmity in the impugned order warranting interference --- Constitutional petition was dismissed in circumstances. Younas Abbas and others v. Additional Sessions Judge, Chakwal and others PLD 2016 SC 581 rel. (b) Criminal Procedure Co de (V of 1898) --- ----Ss. 22- A(6)(i) & 22 -B---Application for registration of case before Ex -officio Justice of Peace---Scope ---Non-registration of criminal case ---Effect ---Aggrieved person was supposed to lay information of commission of cognizable offenc e before SHO ---If the SHO refused or failed to receive such information, then doors of office of Ex -officio Justice of Peace were to be knocked---Prior to laying information before SHO concerned, remedy provided under Ss. 22-A & 22 -B, Cr.P.C. could not be availed. Ehsan Rafiq Rana for Petitioner. Mrs. Noor Jehan Kahoor, Additional P.- G. for Respondents. Date of hearing: 23rd August, 2017. JUDGMENT ZAHEER -UD-DIN KAKAR, J. ---Through the instant petition filed under Article 199 of the Constitution of Isla mic Republic of Pakistan, 1973 (the Constitution), the petitioner has called in question the legality and propriety of the order dated 22.02.2017 (the impugned order), passed by the Sessions Judge, Quetta in his capacity as of Ex -Officio Justice of the Pea ce (JoP), whereby the application under section 22- A, Cr.P.C. filed by the petitioner was dismissed.
2. Precisely stated facts of the case are that the petitioner filed an application under section 22-A(6), Cr.P.C. before respondent No.2 (Ex -Officio JoP) s tating therein that his father was booked in case FIR No.2 of 2017, under sections 10(a), 16(2), 20(1), 24(c) and (d), PECA read with section 109, P.P.C. registered with Police Station, FIA, Quetta, in consequence of such FIR and in pursuance of notice und er section 160, Cr.P.C. he appeared before Muhammad Iqbal Kakar, Investigation Officer, FIA, who started beating him and also abused but later on released and further threatened for dire consequences. According to the petitioner that on 17.1.2017 he moved an application for his unlawful abduction and torture by the said Muhammad Iqbal, to Judicial Magistrate -II, Quetta, who referred him for medical examination to Civil Hospital, Quetta. In result whereof, the police surgeon issued MLC No.248/PS, according t o which a cognizable offence was committed by Muhammad Iqbal Kakar, I.O, FIA, but the respondent refused to lodge FIR. On 19.1.2017, he (petitioner) again moved an application to Judicial Magistrate -II, Quetta for taking appropriate action against Muhammad Iqbal, which was forwarded to the respondent (SHO Police Station Jinnah Town) but he refused to receive the same. Resultantly, he (petitioner) moved an application under section 22- A(6), Cr.P.C. before the Ex Officio JoP, who after calling for a report fr om the concerned police official dismissed the application filed by the petitioner on 22.2.2017, hence this petition.
3. Learned counsel for the petitioners contended that the impugned order is contrary to the facts and law; that while passing the impugned order, the Ex -Officio JoP had badly failed to consider the contents of the application under section 22- A, Cr.P.C.; that the Ex -Officio JoP has failed to give sufficient grounds for dismissal of the application nor gave due consideration to the material b efore it; that sufficient reasons for registration of the FIR against Muhammad Iqbal were available but were not considered; thus, the impugned order is liable to be set aside with direction to the respondent No.1 to lodge FIR against Muhammad Iqbal Kakar.
4. On the other hand the learned Assistant Advocate General assisted by the Additional Prosecutor General opposed petition and supported the impugned order.
5. We have heard learned counsel for the parties and have gone through the available record. Perus al of the record reveals that the FIA authorities registered a case against father of the petitioner and he (petitioner) was called by Muhammad Iqbal Investigating Officer through Notice under section 160, Cr.P.C. Now the stance of the petitioner is that w hen he appeared before the Investigating Officer, he (I.O.) started beating him severely and thereafter, he moved an application against I.O. before Judicial Magistrate- II, Quetta who referred him to Civil Hospital, Quetta for medical check -up. The applica tion further reveals that the petitioner did not mention the date and time of the alleged incident, even he has failed to assign that on which part of his body sustained injuries.
6. In the instant case the record is silent about moving at first hand the S HO to perform statutory duty and without approaching the SHO concerned, the petitioner filed application under section 22- A(6), Cr.P.C. before the Ex -Officio JoP. Under the law, an aggrieved person is supposed to lay information of commission of cognizable offence before In -charge of Police Station and if he refuses or fails to receive such information, then doors of office of Ex -Officio JoP are to be knocked. Prior to laying information before SHO concerned, remedy provided under section 22- A and B, Cr.P.C . cannot be availed. In this regard reference is made to the case of Younas Abbas and others v. Additional Sessions Judge, Chakwal and others {PLD 2016 SC 581), wherein it was held that: "The ex -officio Justice of the Peace, before issuance of a direction on a complaint for the non- registration of a criminal case under subsection (6)(i) of section 22 -A, Code of Criminal Procedure must satisfy himself that sufficient material is available on the record, such as application to the concerned SHO for registrati on of the criminal case and on his refusal or reluctance, complaint to the higher police officers i.e. DPO RPO etc, to show that the aggrieved person, before invoking the powers of ex -officio Justice of the Peace had recourse to the high -ups in the police hierarchy. (underlining by us for emphasis)
7. We are mindful of the fact that under Article 199 of the Constitution and section 561- A of the Cr.P.C., this Court is empowered to review or set aside an order passed under section 22-A, Cr.P.C., but such powe rs could only be exercised, if Ex -Officio JoP has not applied its judicial mind or has overlooked some material aspects of the case. When a well reasoned order has been passed, keeping in view the fact and circumstances of the case, then no interference is required by the High Court. In the instant case a well reasoned order passed in correct appreciation of the documents.
8. In the instant case, the learned counsel for the petitioner failed to point out any illegality or infirmity in the impugned order warranting interference by this Court, therefore, we see not merit in this petition, which is dismissed. JK/148/Bal. Petition dismissed.