PLJ 2013 Islamabad
Present: Iqbal Hameed-ur-Rahman, C.J.
ALI
ASGHAR--Petitioner
versus
Syed ZAFAR HUSSAIN
SHAH, etc.--Respondents
W.P. No. 3072 of
2012, heard on 28.9.2012.
Criminal
Procedure Code, 1898 (V of 1898)--
----Ss. 154
& 22-A--Constitution of Pakistan
Constitution of Pakistan
----Art.
199--Criminal Procedure Code, (V of 1898), Ss. 22-A(6) &
561-A--Constitutional petition--Suspension of order--Justice of Peace ordered
for registration of FIR--Mechanical order without application of legal
mind--Validity--Justice of peace was fully competent to examine all material
brought before him including police report and thereafter with full application
of legal mind would have passed appropriate order for lodging of criminal
case--Allowing applications of petitioner as well as of respondent in
mechanical manner had given rise to complications as to whose FIR was to be
registered--Justice of peace before passing any order u/S. 22-A(6), Cr.P.C. was expected and required to scrutinize all the
material available and would have taken police report into
consideration--Justice of peace while passing the order appeared to have
ignored the material available before him and in mechanical manner had passed
the order--Petition was accepted. [P.
225] B
Ch. Abdul Aziz,
Advocate for Petitioner.
Ch. Hafeezullah Yaqoob, Advocate for
Respondent No. 1/ Complainant.
Mr. Tariq Mahmood Jahangiri, D.A.G. for
State.
Date of hearing:
28.9.2012.
Judgment
Through the
instant Constitutional petition under Article 199 of the Constitution of the
Islamic Republic of Pakistan, 1973 read with Section 561-A, CrP.C.
the petitioner seeks suspension of order dated 14.09.2012 passed by the learned
Justice of Peace/Additional Sessions Judge (East), Islamabad whereby he has
ordered the local police for registration of F.I.R. against the petitioner on
the application under Section 22-A, Cr.P.C. filed by
Respondent No. 1.
2. The facts tersely revealing from the instant
petition are that on 13.07.2012 at about 9 am, Zafar
Ali Shah and Takmeel Shah alongwith
10 unknown persons armed with deadly weapons trespassed into the land owned and
possessed by the petitioner situated in Khasra No.
2361 at Moza Jigjot and by
extending life threats to the guard of the petitioner, uprooted the pickets
from petitioner's land and took away all the articles with them. The petitioner
moved an application before the local police regarding the occurrence but in
vain. Subsequently, the petitioner approached the learned Justice of Peace, Islamabad
3. Learned counsel for the petitioner has
contended that Respondent No. 1 had directly approached the SSP, Islamabad for
registration of the criminal case against the petitioner instead of approaching
the local police, as such, the procedure adopted by Respondent No. 1 was
illegal; that the petitioner had produced all the documents regarding his title
of land but Respondent No. 1 failed to produce even a single document to prove
his ownership and possession over the said land and on the basis of the same
F.I.R. No. 73/2012 had been lodged against Respondent No. 1 and others; that
the petitioner in the said FIR has not alleged that any firing has been made or
anyone has been injured during the occurrence. That the local police has
received two applications one from the petitioner side and the other from
Respondents No. 1's side and accordingly recorded Rupt
No. 43 dated 13.07.2012 on the application of Respondent No. 1 thereafter, the
local police visited the place of occurrence and found no armed person or
empties and even no alleged injured persons were produced before the police,
therefore, as per report dated 17.07.2012 the local police found the occurrence
alleged by Respondent No. 1 as false and concocted one; that the learned
Justice of Peace, Islamabad while passing the impugned order has not taken into
consideration the said report of the local police negating the allegations of
Respondent No. 1; that Respondent No. 1 is not the owner of the land but only a
watchman; that Respondent No. 1 is also running a business of property in the
name and style of "Real Estate" and mala fidely
obtained the impugned order dated 14.09.2012 against the petitioner in
connivance with the alleged owner of the land who has neither appeared before
the local police nor before any Court rather he is living abroad. That the
provisions of Section 154, Cr.P.C. are not to be read
in isolation rather these are to be read in conjunction with the provisions
contained in Section 157, Cr.P.C. and Chapter-24 Rule
4 of Police Rules, 1934; that the local police has recorded reasons in the
daily diary for non-registration of Respondent No. 1's F.I.R. against the
petitioner; that no reason has been given in the impugned order while accepting
application of Respondent No. 1; that the learned Justice of Peace, Islamabad
has passed the impugned order without applying its judicial mind and without
keeping in view all the facts and circumstances coupled with the report of
local police, as such, the same is not in accordance with law; that the
impugned order has been passed in the capacity of Additional Sessions Judge
rather than as Justice of Peace, therefore, liable to be set aside for this
very reason alone. Learned counsel, while upon the cases of Ch. Shah Muhammad
vs. S.H.O. Rahimyer Khan and 2 others (1977 P.Cr.LJ. 2 [Lahore ]) and
Muhammad Mushtaq Vs.
Additional Sessions Judge, Lahore and others
(2008 YLR 2301 [Lahore
4. Learned counsel for Respondent No. 1 has
vehemently controverted the arguments advanced by the
learned counsel for the petitioner and contended that Khasra
No. 2361 referred to by the petitioner is neither mentioned by Respondent No. 1
in his application before the police nor in application under Section 22-A, Cr.P.C. before the learned Justice of Peace; that learned
counsel for Respondent No. 1, while producing copies of certain documents
contended that respondent party is owner in possession of the said land and it
was the petitioner who illegally dispossessed Respondent No. 1; that prior to
the petitioner Respondent No. 1 filed application before the police for
registration of F.I.R. and being unsuccessful before the local police filed
application under Section 22-A, Cr.P.C. That prior to
the application of the petitioner for registration of F.I.R. before the local
police, rupt No. 43 of Respondent No. 1 had been
recorded which was prior to rupt No. 45 of the
petitioner; that both the applications under Section 22-A, Cr.P.C.
filed by the petitioner as well as Respondent No. 1 were accepted and
registration of criminal cases had been allowed in both the petitions; that
learned Justice Peace keeping in view the above facts and circumstances passed
the impugned orders dated 14.09.2012 giving cogent reasons, as such the
petitioner has got lodged the F.I.R. against Respondent No 1 and others as a
counter blast. Learned counsel has relied upon the case of Muhammad Bashir Vs. Station House Officer Okara Cantt and others (PLD 2007
Supreme Court 539).
5. Learned Deputy Attorney-General has adopted
the arguments advanced by the learned counsel for Respondent No. 1 and prayed
for dismissal of the petition.
6. Arguments of learned counsel for the
petitioner and learned counsel for Respondent No. 1 heard. Record made
available on the file perused.
7. Admittedly, both the parties i.e. the
petitioner and Respondent No. 1 filed separate applications for registration of
criminal case against each others before the police. The petitioner had alleged
in his application that Respondent No. 1 dispossessed him illegally from the
land owned and possessed by him whereas on the other hand Respondent No. 1 also
alleged the same version but case was not registered by the local police on
their applications. Subsequently, both the parties approached the Court of
learned Justice of Peace. Islamabad by filing separate applications under
Section 22-A, Cr.P.C Learned Justice of Peace sought
comments from the local police and accepted both the applications on the same
day i.e. 14.09.2012 directing the SHO P.S. Bani Gala,
Islamabad for registration of F.I.Rs by accepting both the petitions under
Section 22-A, Cr.P.C. of the petitioner as well as
that of Respondent No. 1.
8. No doubt as per Section 154, Cr.P.C. and also the judicial pronouncements it has been
held that the local police has no power to first investigate the matter and
then register the criminal case. But when the matter regarding registration for
criminal case is subjudice before the ex-officio
Justice of Peace, he is required to take into consideration the complaint
including facts and circumstances of the case and also the report of the police
while deciding the application under Section 22-A, Cr.P.C
rather than deciding the same in a mechanical manner without giving any reason
for allowing registration of criminal case, in the instant case it appears that
both the orders for registration of criminal cases on the applications of the
petitioner as well as Respondent No. 1 under Section 22-A, Cr.P.C,
have been passed in mechanical manner. In view of the same, two FIRs with
regard to the same allegation of taking possession forcibly of the same land
cannot be registered. As such, the learned Justice of Peace at the most could
have ordered for registering of F.I.R. by accepting one of the petitions under
Section 22-A, Cr.P.C. of either the petitioner or
Respondent No. 1 and further if the other petition under Section 22-A, Cr.P.C. was to be accepted then only a cross-version could
be ordered to be recorded.
9. In the above perspective, it appears that the
learned Justice of Peace while deciding both the applications under Section
22-A, Cr.P.C for the petitioner as well as of
Respondent No. 1 has passed a mechanical order without application of legal
mind. The learned Justice of Peace was fully competent to examine all the
material brought before him including the police reports and thereafter with
full application of legal mind should have passed appropriate order for lodging
of criminal case. Allowing both the applications of the petitioner as well as
of Respondent No. 1 in mechanical manner has given rise to complications as to
whose F.I.R. is to be registered. The learned Justice of Peace before passing
any order under Section 22-A(6), Cr.P.C is expected
and required to scrutinize all the material available and in this regard should
also have taken the police report into consideration. There was no bar to him
in taking into consideration of the same. In the instant case the learned
Justice of Peace while passing the impugned order appears to have ignored the
said material available before him and in a mechanical manner had passed the
impugned order dated 14.09.2012. In view of the same the impugned order is set
aside. In this regard I seek guidance from the judgment reported
as Muhammad Mushtaq. Vs.
Additional Sessions Judge, Lahore and
others (2008 YLR 2301 [Lahore
"A combined
examination of Section 154, Cr.P.C, 22-A(6), Cr.P.C. and the case law laid down by the Apex Court and
the Full Bench of this Court, referred to above, would show that an Ex-officio
Justice of the Peace before whom an application under Section 22-A(6), Cr.P.C. has been laid seeking a direction to the S.H.O.
concerned for registration of a case is not expected and required to allow the
request of the complaining person mechanically blindly and without application
of legal mind. The Apex Court
I am not in
agreement with the learned counsel for petitioner that the august Supreme Court
of Pakistan has restrained Ex-officio Justices of the Peace from examination of
complaints placed before them under Section 22-A(6), Cr.P.C.
However, such examination cannot be and should not be with the yardstick of
trial Court. The office of Ex-officio Justice of the Peace is a legal forum.
The complaints against an action or inaction of the police are filed by the
aggrieved person before its legal forum, which performs administrative and
ministerial function subject to scrutiny by superior Courts of Pakistan
10. Before parting with this judgment it is observed
that at present it is an admitted position that F.I.R. No. 73/2012 dated
17.09.2012 under Sections 506(ii)/379/511/447, P.P.C. of the petitioner
against Respondent No.
1 and others stands
registered. It is
also apparent from the record that both the parties have levelled almost the same allegations against each others.
Since F.I.R. No. 73/2012 has already been registered, therefore, Respondent No.
1 could at the most get recorded his cross-version in the said F.I.R. or in
alternate Respondent No. 1 may file a private complaint before the Court of
competent jurisdiction, if so advised.
11. In view of the above, the impugned order
dated 14.09.2012 is set aside and the instant petition stands accepted.
(R.A.) Petition
accepted
