2017 P Cr. L J 1155
[Balochistan]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
MUHAMMAD KHAN and others ---Petitioners
Versus
ADDITIONAL SESSIONS JUDGE, CHAMAN and others ---Respondents
C.P. No. 1114 of 2016 and C.P. No. 34 of 2017, decided on 17th April, 2017.
(a) Criminal Procedure Code (V of 1898) ---
----Ss. 154, 155 & 156---Recording of FIR ---Officer Incharge of Police Station was bound to
lodge the report immediately on receipt of information with regard to commission of a
cognizable offenc e---Officer Incharge of Police Station, in the presence case, refused to record
FIR only because, in his opinion, the allegations conveyed to him were false ---Validity ---Officer
Incharge of Police Station was bound to reduce into writing, any information g iven to him, either
in writing or oral, relating to commission of an offence cognizable in nature under S. 154,
Cr.P.C.---Section 155, Cr.P.C. dealt with the information in respect of offence being non-
cognizable in nature ---Section 156, Cr.P.C. provided procedure, required to be adopted by an
Officer Incharge of Police Station to investigate in a cognizable case reported to him ---
Investigation was to be made only after recording the FIR ---Record showed that legal procedure
had not been adopted by the Offic er Incharge of Police Station ---No report was submitted to the
concerned court, or other steps, as provided therein, were taken--- Information given by the
petitioner about commission of offence remained unattended---Officer Incharge of Police Station
had c onducted some inquiry as per order of the Ex -Officio Justice of Peace but with no results ---
Report of inquiry filed before the court did not amount to an investigation as provided under S.
157, Cr.P.C.---Said report was based on narration of the facts as m ade in statement of the
petitioner, or as described by the nominated person---Mere narration of facts did not serve the
purpose ---Officer Incharge of Police Station was required to arrive at a decision that cognizable
offence was made out, if so, FIR was t o be registered but there was complete failure on the part
of concerned authorities ---Complaint of the petitioner and report submitted by the Officer
Incharge of Police Station, had made out offence of cognizable nature, which was required to be
registered ---Constitutional petition was accepted in circumstances and Officer Incharge Police
Station concerned was directed to register the FIR against the proposed accused persons.
Muhammad Bashir v. Station House Officer PLD 2007 SC 539 rel.
(b) Criminal Procedure Code (V of 1898) ---
----Ss. 22 -A & 22 -B---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl -i-amd, common
intention ---FIR, registration of ---Scope ---Petitioner filed application for registration of case
against the accused with the allegation that they co mmitted murder of his daughter but same was
dismissed by Ex -Officio Justice of Peace---Validity ---Ex-Officio Justice of Peace under S. 23-
A(6), Cr.P.C. was to examine whether the information disclosed by the petitioner did or did not
constitute a cognizabl e offence and if it did, then to direct the concerned Officer Incharge of
Police Station to record FIR without going into the veracity of the information in question--- In
the present case, offence of murder was alleged against the proposed accused persons, by the
petitioner, Ex -Officio Justice of Peace while exercising the powers under S. 22- A, Cr.P.C.
completely failed to understand the nature of the powers conferred on him, thus, failed to
exercise the powers vested in him ---Constitutional petition was ac cepted in circumstances and
Officer Incharge Police Station concerned was directed to register the FIR against the proposed
accused persons.
Ajmal Khan Kakar for Petitioner (in C.P. No. 1114 of 2016).
Sohail Ahmed Rajpoot for Petitioner (in C.P. No. 34 of 2017).
Abdul Latif Kakar, Additional P.- G. for the State.
Samiullah Khan for proposed accused Abdul Raheem and others.
Date of hearing: 3rd April, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This common judgment 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 Sessions
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 dec eased.
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 registration 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 conditi on, 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 deceased, 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 killed 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
applicant 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
registered bearing FIR No.15/2016 against the brother of deceased. Where after, 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 along with 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 FI R 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 auth orities, 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 referre d
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 fac t 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 deceased is a hardened criminal and in order to save
his skin from the consequenc e 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 Amanullah,
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 deceased Abdul Raheem Agha
approached the concerned Levies Thana and on his complai nt FIR No.15/2016 under section
302, 34, P.P.C. was registered; that the investigation of the case has already been transferred to
Crimes Branch Quetta for specialized investigation.
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 Amanullah along with another accused entered into his
house and murdered his sist er 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 the FIR No.15/2016 at Levies Thana Gulistan under sections 302, 34,
P.P.C., 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, whereas 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 grievance,
but without any fruitful results.
9. Be that as it may, both th e 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,
becaus e 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 ma y 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 auth ority in relation to its functions and duties."
Subsection (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 St ation, shall reduce into writing, every information given to him, either
written or oral, relating to commission of a cognizable offence. Section 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 pr ovision, 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 per 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 amount 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 whether any
cognizable offence is made out or not, if so, FIR 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 l earned counsel for the petitioners while arguing the matter relied upon the Judgment
of Hon'ble Supreme Court made in Civil Petition titled as "Muhammad Bashir v. 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 Honourable Supreme Court that: -
"12. The Scheme of law w hich becomes apparent from a bare perusal of these provisions
is that whenever an Officer Incharge of a Police Station receives some information about
the commission of an offence, he is expected first to find out whether the offence
disclosed fell into th e category of cognizable offence or was one which was non -
cognizable. And once he was through with this exercise then the word "SHALL"
appearing in the said provisions of section 154, Cr.P.C. would take over which obliged,
the SHO, 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 FIR, if
the offence disclosed was cognizable or else to merely record the same in the Station
Diary as mentioned by sect ion 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- cognizable. As has
been mentioned above sections 154 and 155 of the Cr.P.C. are the only two provisions in
the said Code whi ch talk about the manner in which an information received by a SHO
relating to the commission of an offence was to be treated.
13. It may 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
information received by him before complying with the command of the said provisions,
which obliged him to reduce the same into w riting irrespective of the fact whether such
an information was true or otherwise.
14. The wisdom was not far to find. If the SHO was given the authority to determine the
truthfulness or the falsehood of the allegations leveled against some one and thereaf ter to
decide to record or not to record such allegation as FIR, 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 regar ding 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 FIR and
the report consequently submitted by a police officer under section 173, Cr.P.C. was only
one of the three modes of reaching the prescribed competent court fo r such a
determination. The other two channels being a private complaint and a suo motu action
taken by the authorized Magistrate leading to the taking of cognizance.
38. And if an Ex -officio Justice of the Peace who also happens to be the higher of the tw o
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 an d 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 f ate 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 offence and
if it did then to direct the concerned SHO to record an FIR without going into the veracity
of the informa tion in question, and no more. Offering any other interpretation to the
provisions in question would be doing violence to the entire scheme of the Cr.P.C. which
would not be permitted."
14. In view of the verdict of the Honourable Supreme Court, the initia l 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, investiga tion 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 power s 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 order
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.
JK/59/ Bal. Petitions accepted.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.