2022 Y L R 2215
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ
SAIF UD DIN ---Petitioner
Versus
MUHI UD DIN and another ---Respondents
Constitutional Petition No. 1222 of 2021 and Contempt Application No. 58 of 2021 in
Constitutional Petition No. 1222 of 2021, decided on 30th September, 2021.
Criminal Procedure Code (V of 1898) ---
----Ss. 22 -A, 154, 155 & 200 ---Non-cognizable offence ---Ex-officio Justice of Peace ---
Jurisdiction --- Petitioner was aggrieved of direction i ssued by Ex -officio Justice of Peace for
registration of FIR against him in case where no cognizable offence was made out ---Validity -
--Ex-officio Justice of Peace was empowered under S.22 -A(1-6), Cr.P.C. to issue necessary
directions for registration of FI R, if after perusal of available record contents of application
prima facie could establish commission of cognizable offence ---In case of non -cognizable
offence, two remedies were available first before Station House Officer concerned, to whom
application was sent by Ex -officio Justice of Peace, to register complaint in Daily
Roznamcha Report and was to proceed according to provisions of S.155, Cr.P.C. for seeking
permission from Judicial Magistrate for investigation and thereafter to submit complaint
befor e Court ---Remedy of private complaint under S.200, Cr.P.C. before Court was also
available to complainant ---High Court set aside order passed by Ex -officio Justice of Peace
and FIR registered against petitioner was quashed ---Constitutional petition was dis missed in
circumstances.
Ghulam Wali Achakzai for Petitioner.
Zahoor Ahmed Baloch, Additional Advocate General, Younas Mengal Additional
Prosecutor General along with Muhammad Azhar Akram, DIG Quetta, Hameedullah Dasti,
SP (Legal), Hassan Abbas Malik, P DSP Quetta, Nadeem Khan SI/ASHO Police Station
Khaliq Shaheed, Waqar Malik, Ex -Head Mohrar Police Station Khaliq Shaheed Quetta for
Respondents..
Date of hearing: 14th September, 2021.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---Through this Constitut ional
Petition the following prayer has been sought:
"It is accordingly most respectfully prayed that impugned order dated 10 -08-2021
passed by Sessions Judge Sariab Division/ Ex -Officio(sic) may kindly be set aside
and application under section 22-A, Cr.P.C filed by respondent No.1 may kindly be
rejected, in the interest of justice, equity and fair play"
2. This Constitutional petition was admitted to regular hearing vide order dated 23rd
August 2021, when the operation of impugned order dated 10 th August 2021 passed by
Sessions Judge, Sariab Division/Ex -Officio Justice of Peace, was suspended. Meanwhile the
connected Contempt Application No. 58 of 2021 was filed against the respondents with the
following prayer:
"It is, accordingly, most respect fully prayed that contempt of Court proceedings may
kindly be initiated against the respondents and they may kindly be punished as per
law in the interest of justice, equity and fair play."
Since the instant petition and the contempt application are inter connected, therefor,
are being disposed of through this common judgment.
3. Brief facts as stated in the petition are that an application under section 22 -A, Cr.P.C.
was filed by respondent No.1 Mohi -ud-Din, before the Sessions Judge Sariab/Ex -officio
Justice of Peace, which was accepted vide order dated 10th August 2021 ("impugned
herein"), whereby the respondent No.2/SHO of concerned police station was directed to
lodge FIR against the petitioner.
4. The petitioner being aggrieved of the order passed by t he learned Justice of Peace,
preferred the instant petition, which was admitted to the regular hearing by this court vide
order dated 30th August 2021, whereby the operation of impugned order was also suspended.
The petition was filed mainly on the ground that no cognizable offence was alleged
and according to medical certificate dated 13th July 2021, only 'bruises on left side of neck,
both forearms and scratches on a right knee joint' were noted by the Medico Legal Officer.
Meanwhile a C.M.A. No. 2692 of 2021 for urgent hearing along with C.M.A. No. 2693 of
2021 for interim relief was filed, which was accepted vide order dated 30th August 2021
mainly for the reason that after passing of order dated 23rd August 2021 by this court with
regard to suspension of impugned order of the learned Justice of Peace, the S.H.O. Police
Station Khaliq Shaheed (respondent No.2), registered an FIR bearing No. 139 of 2021 under
section 337 -A, P.P.C. on same date. Meanwhile contempt application was filed along with
Miscellan eous applications, in which notices were issued to the respondents/contemnor.
5. Vide order dated 30th August 2021, when operation of impugned FIR was also
suspended and DIG Quetta was also directed to appear in person to explain the very reasons
regarding violation of the court's order. The case was fixed for 02nd September 2021, when
instead of DIG Quetta, SP (Legal) Quetta and SP (Investigation) Sariab Quetta along with the
SHO and ASHO appeared before the court and it was stated on behalf of the police officials
that order of this court was conveyed to the police station on 24th August 2021, while the
FIR was lodged on 23rd August 2021; that the officials were neither aware about suspension
of impugned order of Justice of the Peace, nor the copy of the o rder was deliver to them on
23rd August 2021, therefore, the FIR was lodged without having any intention of contempt
of court or intended violation of court's order in any manner.
Be that as it may, but it has been observed that the impugned order of the learned
Justice of Peace was passed on 10th August 2021, while this court suspended the impugned
order on 23rd August 2021. Under the circumstances a query was posed to the police
officials, particularly to the SHO concerned, that why the order dated 10 Au gust 2021 passed
by Justice of Peace was held in abeyance till 23rd August 2021? then whey in haphazard and
cursory manner the FIR was lodged on the same day, when the operation of impugned order
dated 10th August 2021 of Justice of Peace was suspended by this court. The SHO concerned
responded that due to security duty of Mohram -ul-Haram the order of Justice of Peace could
not be implemented , but soon after emergency duty, the direction of the Justice of Peace
were complied with.
6. We were not satisfied from the submission made by the SHO, therefore, once again
the DIG Quetta was directed to appear in person and explain the failure of the police
machinery with regard to implementation of the courts' orders. Suffice to mention here that
initially the order dated 10th August 2021 was violated, when it was not complied with in
letter in spirit, and, subsequently, again the order dated 23rd August 2021 passed by this
court was violated, when the impugned order of court below was suspended. On 14th
September 20 21 the following police officials were in attendance:
"Mr. Muhammad Azhar Akram, DIG Quetta,
Mr. Hameedullah Dasti, SP (Legal),
Mr. Hassan Abbas Malik, PDSP Quetta,
Nadeem Khan SI/ASHO Police Station Khaliq Shaheed,
Waqar Malik, Ex -Head Mohrar Police Station Khaliq Shaheed Quetta."
Report was submitted and the DIG Quetta present in person also apprised the court
that soon after receipt of order of this court, he has suspended the respondent No.2 Abid
Mengal (SHO Police Station Khaliq Shaheed), while h e further assured that every order of
the court shall be complied with in letter in spirit and he has personally issued direction to all
the police stations that in any case, no delay shall be made for implementing the order of the
courts, whatever the nat ure may be. The conduct of the DIG Quetta was overall apologetic
and he while tendering unconditional apology assured the court on behalf of the police
Department that in future no such complaint, disobedience, violation and willful defiance of
the court's order would take place. The explanation furnished by the DIG Quetta being
satisfactory is accepted accordingly. However, certain measures are required to be taken, to
ensure that in future no such willful defiance shall take place.
7. Now adverting to val idity and legality of the impugned order dated 10th August 2021,
passed by the learned Justice of the Peace, we have observed that according to Medical
Certificate, only bruises and scratches were noted by the Medico Legal Officer and said
offences fall wi thin the preview of an offence related to other hurts, which are punishable
under Section 337 -L(1), which is non -cognizable in nature, thus the order passed by Justice
of the Peace is not sustainable.
8. Needless to observe here that provision of section 2 2-A(1-6), which empowers the
Justice of the peace to issue necessary direction for registration of FIR, if prima facie, after
perusal of available record and contents of the application, whether a cognizable offence is
made out or otherwise. However, in ca se of non -cognizable offence, two remedies are
available, first before the SHO concerned, to whom the application has been sent, who will
register the complaint in the Daily Roznamcha report and proceed according to provision of
section 155, Cr.P.C. initia lly for seeking permission from the Judicial Magistrate for
investigation and thereafter submit the complaint before the court. The other remedy is also a
private complaint under Section 200 Cr.P.C, which is available to the complainant before the
said cou rt.
Thus for the above reason we are inclined to accept this Constitutional Petition and
after setting aside the impugned order dated 10th August 2021, passed by Sessions Judge
Sariab/ Ex -Officio Justice of the Peace, the FIR bearing No. 139 of 2021, under section 337 -
A, P.P.C. registered with Police Station Khaliq Shaheed is hereby quashed.
While as far as the connected contempt application is concerned, it may not be out of
place to mention here that the matters of contempt are always between courts and the
contemnor, while the applicant in this behalf only enjoys the status of informer. Sin ce the
DIG has informed the court that the delinquent officer (Abid Mengal/SHO) has been
suspended and inquiry has also been initiated against him, therefore, we do not feel necessary
to further proceed with the contempt proceedings, which is accordingly d isposed of.
Before parting with this judgment, we apt to pass certain directions with regard to
implementations of orders of the courts by the Police Department of the Province in the
following manner:
1. Every order of the court, in which any direction i s issued to any Police
Officer/official, of whatever the rank or designation, he/she may be, shall be
conveyed to him/her by the District Public Prosecutor, and in case of his absence,
by the Naib Court of the court within twenty four (24) hours.
2. If the officer concerned intends or realizes that the order cannot be implemented for
any reason, he shall record the reason(s) in this behalf and forward the same to the
legal Branch of the Police Department for opinion and shall wait till receipt of the
opini on from the legal branch.
3. Any matter forwarded to the legal branch, and, the decision thereon shall be finalized
within next 48 hours.
4. If the Police Department decides to assail the order of a court before next higher
forum, it shall also be filed wi thin next 24 hours.
5. That all directions mentioned herein above shall be finalized within four days from
passing of the order, otherwise shall immediately be implemented without any further
delay.
Office is directed to transmit the copy of this order to the DIG Quetta, AIG and SP
(Legal) of the Police Department with direction for onward transmission to all the police
Stations in the Province, for information and compliance, while the outcome of the inquiry
proceedings initiated against the delinquent of ficer Abid Mengal SI/SHO (under suspension)
shall be submitted before the Registrar of this court within 90 days for our perusal in
chamber.
With above directions and observations the petition stands accepted and the connected
contempt application is disp osed of accordingly.
MH/54/Bal. 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.