2022 Y L R 953
[Balochistan]
Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ
AKBAR HARIFAL and another ---Petitioners
Versus
ZAHID NOOR and 3 others ---Respondents
Constitution Petition No. 377 of 2015, decided on 27th July, 2020.
(a) Criminal Procedure Code (V of 1898) ---
----Ss. 22- A & 22 -B---Powers of Ex -officio Justice of Peace--- Registration of FIR ---Element
of mala fide ---Scope ---Petitioners assailed order passed by Ex- officio Justice of Peace
whereby criminal case was ordered to be regist ered against them ---Order for registration of
FIR against the petitioners was passed without affording them an opportunity of hearing---
Respondent was arrested in FIR on the complaint of one of the petitioners ---Petitioner had
alleged that a passenger van and official vehicle of the petitioners collided and there was no damage to any vehicle, the passenger van also went away and vehicle of the petitioners also proceeded, meanwhile the respondent forcibly stopped the official vehicle, resisted and damaged th e shirt of the levies official but on the other hand respondent claimed that the
petitioners and other levies officials took him to a place where he was tortured and wrongfully confined for ten hours ---No medical certificate about injuries to the responden t
was available on record ---Prompt FIR was lodged against him and he was arrested on the
same day, therefore, no question of wrongful confinement arose ---Respondent had filed the
application under S. 22 -A, Cr.P.C. in order to harass and humiliate the publi c servants ---
Element of mala fide was apparent from the conduct of respondent ---Constitutional petition
was allowed and the impugned order was set aside, in circumstances.
2020 YLR 44 and Sughra Bibi v. State PLD 2018 SC 595 rel.
(b) Criminal Procedure Co de (V of 1898) ---
----Ss. 22- A & 22 -B---Powers of Ex- officio Justice of Peace---Registration of FIR ---Scope ---
Ex officio Justice of Peace, in exercise of powers under S.22- A, Cr.P.C., is not supposed to
proceed and act mechanically by simply considering the version of events narrated by a party applying for registration of an FIR, but instead, in order to safeguard against misuse or abuse of such process, the Ex -officio Justice of Peace has to apply his judicial mind and has to
satisfy himself that prima fa cie some material is available on record to support such version.
Younas Abbas and others v. Additional Sessions Judge, Chakwal PLD 2016 SC 581
rel.
(c) Criminal Procedure Code (V of 1898) ---
---Ss. 22 -A, 22 -B & 154 ---Powers of Ex -officio Justice of Peace---Information in cognizable
cases ---Scope ---Word 'shall' has been used in S.154, Cr.P.C., while the word 'may' has been
used in S. 22- A(6), Cr.P.C., which manifests the intention of legislature that Ex- officio
Justice of Peace is still left with discretio n to pass an order for registration of FIR.
Amanullah Kanrani for Petitioners.
Syed Muhammad Zahid for Respondent No. 1.
Abdul Karim Malghani, State Counsel.
Date of hearing: 14th July, 2020.
JUDGMENT
ROZI KHAN BARRECH, J .---The petitioners have invoked the Constitutional
jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of
Pakistan, 1973 with the following prayer: --
"It is, therefore, accordingly prayed that this Hon'ble Court may kindly be set aside
the impugned order dated 24.04.2015 passed by the respondent No.3 and also declared the same null and void and passed in excess of powers and jurisdiction, in the interest of justice".
2. Brief facts of the case are that the respondent No. 1 namely Zahid Noor son of Haji
Noor Muhammad filed an application under section 22- A, Cr.P.C., against the petitioners
before the Court of learned Additional Sessions Judge -V, Quetta, being designated Justice of
Peace for registration of criminal case under the relevant law on the ground that on 11.04.2015 the respondent No.1 was present at his showroom and at about 4:35 p.m., a passenger van and official vehicle of petitioner No.1 were passing through the road, at the precise moments, vehicle of the petitioner No.1 while wrongly overtaking collided with the van on account of which a dispute arose between van driver and petitioner No.1. The respondent No.1 and some passersby interrupted and during course of arguments the respondent No.1 and all other interveners hel d that it was the fault of the petitioner No.1 for
causing the accident. It is further alleged that the respondent No.1 annoyed and by way of force put the respondent No.1 in his official vehicle and carried him to Manguchar and subjected him to inhuman ph ysical torture on account of which the respondent No.1
sustained serious injuries on his whole body. It is further averred in the application under section 22 -A, Cr.P.C., that the petitioners were forcibly taking the respondent No.1 in their
official vehic le meanwhile the petitioners also made aerial firing, this scene was also
observed by the inhabitants of the area in a mobile camera. It is also alleged that after ten hours of illegal detention, the petitioner No.1 arrived back to Quetta and handed over t he
custody of the respondent No.1 to the police station and lodged a false FIR No.31 of 2015 with Police Station Kharootabad.
3. After hearing arguments of learned counsel for the respondent No.1, the application
submitted by him was accepted by the learned Additional Sessions Judge -V/Ex -Officio
Justice of Peace, Quetta, vide order dated 24.04.2015 (hereinafter "the impugned Order") the
SHO concerned was directed for registration of criminal case according to relevant law.
Feeling aggrieved, the petitioner s have challenged the validity of the said order by
filing the instant constitution petition.
4. The respondent No.1 was put on notice. After filing this petition, the petitioners
submitted a Miscellaneous Application No. 918 of 2015 whereby this Court vide order dated 28.04.2015 suspended the impugned order dated 24.04.2015.
5. We have heard the learned counsel for the parties and anxiously considered the
arguments in the light of the law and facts on record.
6. In exercise of powers under section 22- A, Cr .P.C., the Justice of Peace is not
supposed to proceed and act mechanically by simply considering the version of events narrated by a party applying for registration of an FIR, but instead, in order to safeguard against misuse or abuse of such process, the Justice of Peace has to apply his judicial mind
and has to satisfy himself that prima facie there is some material available on record to support such version. We are fortified by the additional note appended to the main judgment
of the Hon'ble Supreme Court in the case reported as Younas Abbas and others v. Additional
Sessions Judge, Chakwal (PLD 2016 SC 581) wherein the following was observed:
"2. The past experience of around 14 years (since the insertion of these provisions into the Code of Criminal P rocedure) would unmistakably reveal that these provisions
especially section 22 -A of the Code of Criminal Procedure, though beneficial and
advantageous to the public at large, yet in myriad cases, it has been misused and abused.
Once a false criminal case is registered against an individual, it becomes exceedingly difficult for him/her to get rid of it. The time and money which is spent on acquiring a clean chit by way of cancellation of the case or acquittal is not hard to fathom. There is no denying the fact that at times false and frivolous cases are got registered just to
humble and harass the opposite party. In such a milieu, powers given to an ex- offocio
Justice of the Peace under subsection (6) of section 22- A, Code of Criminal Procedure ,
to issue appropriate directions on a complaint filed by an aggrieved person for registration of a criminal case (Clause- i) and for transfer of investigation from one
police officer to another (Clause -ii) though efficacious and expeditious besides being
at the doorstep, but at the same time, these provisions should not be unbridled or
open- ended. These provisions must be defined, structured and its contour delineated
to obviate misuse by influential and unscrupulous elements. Therefore: -
(i) The Ex -offici o Justice of the Peace, before 0 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 registration 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 invok- ing the
powers of Ex- officio Just ice of the Peace, had recourse to the high ups in the police
hierarchy.
(ii)......"
7. The logic behind the conferring of powers upon the Justice of Peace under the latest
amendment, which was made in the year 2002, was to enable the aggrieved person to
approach the Justice of Peace for the redressal of his grievances i.e. non -registration of FIR's,
transfer of investigation to the Courts situated at district level or Session or at particular Sessions Division. At times, this is being observed t hat the office of Justice of Peace is being
misused by the litigants in order to settle their scores or sometimes to convert the civil
litigation into criminal litigation and to use the powers under this section to the damage of
the rival party for certain ulterior motives, which was never the intention of the legislature.
For convenience, the provisions of sections 22- A(6) and 154 of the Cr.P.C., are reproduced
hereunder: --
Section -22-A(6). An Ex -officio Justice of the Peace may issue appropriate directio ns
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."
"Section 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 into 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 person giving it, and the substance thereof shall be entered in a book to be kept by such offic er in such form as the Provincial Government may prescribe in this behalf."
By comparing the abovementioned provisions of the Criminal Procedure, it is
abundantly clear that in section 154, Cr.P.C., the word shall has been used while in section 22-A(6), C r.P.C. the word may has been used, which manifest the intention of the legislature
that the Justice of Peace is still left with discretion to pass an order for the registration of FIR that's too in appropriate certain cases.
Proceedings before Justice of Peace are quasi -judicial and are not executive,
administrative or ministerial to deal with the matters mechanically rather the same are quasi-judicial powers in the every case before him demands discretion and judicial observations and that is too after he aring the parties.
8. In view of the latest judgment of this Court 2020 YLR 44, it is abundantly clear that a
party to a 22- A, Cr.P.C., proceedings shall have the right of hearing to the proceedings and
the person against whom registration of FIR is sought he has to be afforded an opportunity of
hearing and thereafter the Justice of Peace can pass any appropriate order because by not
giving notice, the Justice of Peace would be condemning that person unheard by passing an order under the quasi -judicial proc eedings. It is therefore, observed that the Justice of Peace
before passing any order for the registration of the FIR shall put the other party on notice against whom registration of FIR is asked for.
9. Now dilating upon the merits of the instant petition , the order for registration of FIR
against the petitioners was passed by the Justice of Peace without affording an opportunity of hearing. More so, the respondent No.1 was arrested by police in Crime No.31 of 2015 on 11.04.2015 for an offence under sections 341, 427, 504, 506 (B), 186, 353, P.P.C. was registered at Police Station Kharootabad on the complaint of petitioner No.2 against the private respondent/complainant about the same occurrence. It was alleged in the said FIR that on 11.04.2015 at 4:40 p.m ., a passenger van and official vehicle of the petitioners
collided and there is no damages caused to any vehicle. The passenger van also went away and vehicle of the petitioners also proceeded, meanwhile one person came on showroom, later on, name known t o them Zahid Noor Niazai who told that he belonged to PTI and
forcibly stopped the official vehicle and resisted and turned in shirt of levies officials but on the other hand the respondent No.1 claimed that the petitioners and other levies officials took him into Manguchar and he was wrongly confined for ten hours and tortured him.
After perusal of the case file it reveals that there was a cross version of petitioners
and respondent No.1 against each other about the same occurrence. FIR was lodged by the petitioners on the same day at 5:30 p.m., and according to police report the respondent No.1 was took at first at Police Station Saddar and later on, on the same day at 10:00 p.m., the respondent No.1 was brought to Police Station Khartooabad who was booke d in the FIR
No.39 of 2015 and was arrested. The ground taken by the respondent No.1 in his application under section 22- A, Cr.P.C., appears to be whimsical. There is no medical certificate about
injuries of the respondent No.1 is available on record. Prom pt FIR was lodged against him by
the petitioners and he was arrested on the same day by Police Station Kharootabad, no question of wrong confinement at Manguchar is arise.
10. It is apparent from the impugned order that the substance of element was neither
considered nor held in the juxta position by the trial Court with the material available. The application under section 22- A, Cr.P.C., was filed by the respondent in order to harass and
humiliate the public servant, which was never the intention of the le gislature. The petitioners
also lodged FIR against the complainant/respondent about the same occurrence but the learned trial Court also did not consider the reported judgment of the Hon'ble Supreme Court in the case of Sughra Bibi v. State PLD 2018 SC 595, it has been observed that after entering the first information relating to commission of a cognizable offence in the prescribed book, i.e. after registration of an FIR, the matter became a "case" and therefore every step taken in the ensuing investigatio n was a step taken in that case and second FIR was not allowed in the
cited case.
The element of mala fide is quite apparent from the conduct of the
respondent/complainant and in this view of the matter, the order passed by the learned Justice of Peace 24 .04.2015 is not in accordance with law.
For the reasons discussed above, the instant writ petition is allowed, the impugned
order dated 24.04.2015 passed by the learned Additional Sessions Judge -V/Ex-Officio
Justice of Peace, Quetta, is set aside. However , the complainant/ respondent No.1 is at liberty
to file a private complaint, if so advised, before the competent forum.
SA/227/Bal. Petition dismissed.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.