ORDER SHEET

IN THE HIGH COURT OF SINDH,CIRCUIT COURT, HYDERABAD.

Present:

Mr. Justice SalahuddinPanhwar&

Mr. Justice Khadim Hussain Tunio.

C.P No.D-2648 of 2016

Date of hearing:                      21.12.2016.

Date of decision:                     21.12.2016.

Petitioner:                                Asif Ali Jatoithrough Mr. Amjad Ali Sahto,Advocate.

Respondent No.1:                   Station House Officer, PS Qasimabad, Hyderabad through Mr. Allah BachayoSoomro, Additional A.G. Sindh.

Respondent No.2:                   Muhammad Bukhsh through Syed Zulfiquar Ali Shah, advocate.

O R D E R

KHADIM HUSSAIN TUNIO, J: - Through captioned constitution petition, the petitioner has challenged vires of order dated 16.09.2016, passed by the learned Ex: Officio, Justice of Peace / 2^nd Additional Sessions Judge, Hyderabad under section 22-A & B (6) Cr.P.C. filed by respondent No.2 wherein SHO PS Qasimabad the respondent No.1 was directed to record statement of respondent No.2 and lodge FIR if cognizable offence is made.

2.         Mr. Amjad Ali Sahto, learned counsel for petitioner submitted that the impugned order passed by the learned Ex: Officio, Justice of Peace is against the law and norms of natural justice; that FIR No.117 / 2016 lodged by SIP Ghulam Hussain at PS Hussainabad against ASI Muhammad Malook under section 9 (c) CNS Act, by citing ASI Farman Ali Abroas witness of recovery; that the respondent No.3 passed the impugned order and did not consider the fact of registration of FIR No.117 / 2016; that respondent No.2 / applicant is supporting to his uncle ASI Muhammad Malook who is involved in the criminal cases after reinstate of his service; that the respondent No.2 / applicant has not disclosed the name of SHO Hussainabad Mir Imdad Ali with malafide and ulterior motives, implicated the petitioner and other officials who did not allow them for committing any offence. He also further submitted that Hon’ble apex Court has been pleased and hold in case of Yousif and others v. Additional Sessions Judge, Chakwaland others that order passed by the Ex: Officio, Justice of Peace is of quasi judicial in nature and before issuing direction for registration of criminal case under section 22-A & B Cr.P.C. must satisfy itself that sufficient material is brought on the record such as application to the Station House Officer of the concerned Police Station for registration of the case and on his refusal or reluctant then application has to approach high police officials before approaching the Ex: Officio, Justice of Peace; that the impugned order is passed on conjectures, surmises and assumptions, suppositions and presumptions.eHHsisissksks kd    FFF

3.         Conversely, Syed Zulfiquar Ali Shah advocate for respondent No.2 submitted that from the contents of the application moved by the respondent No.2 a cognizable offence is made out as police official booked in the case of Narcotics to uncle of the petitioner, who is ASI in Sindh Police and Ex: Officio, Justice of Peace has rightly passed the impugned order in accordance with law; that police officials got lodged FIR No.117 / 2016 under section 9 (c) CNS Act at PS Hussainabad by one SIP Ghulam Muhammad Leghari on 06.09.2016 but actual real facts are not disclosed therein.

4.         Heard arguments and perused record.

5.         There are many precedents / instances regarding misuse of provisions of section 22-A & B Cr.P.C. and, thus, it is basic duty of the Court that such misuse be taken care and of such application should not be lightly entertained and decided in a mechanical manner for issuing directions to police to record statement under section 154 Cr.P.C. of complainant to lodge FIR and conduct investigation and prosecuting the alleged accused. We are fortified in our view that the principle laid down in case of ‘Imtiaz AhmedCheema v. SHO PS Dharki, Ghotki(2010 YLR 1890) wherein it has been observed that;

"The provisions of section 22-A, Cr.P.C. have been misused in a number of cases. The wisdom of legislature was not that any person who in discharging of duties takes an action against the accused would be subjected to harassment by invoking provision of section 22-A, Cr.P.C. The Courts in mechanical manner should not allow application under section 22-A and B and should apply its mind as to whether the applicant has approached the Court with clean hands or it is tainted with malice. Unless such practice is discharged, it would have far-reaching effect on the police officials who in discharge of duties take actions against them. The law has to be interpreted in a manner that its protection extends to everyone. I am therefore, of the opinion that order of the Sessions Judge was passed in mechanical manner and the applicant approaching the Sessions Judge. As per the record reflects that it was tainted with malice."

6.         The learned single bench of this Court has taken similar view while placing reliance on aforesaid decision / verdict in case of ‘Jamil Ahmed Butt and another v. The State through Prosecutor-General, Sindh and 2 others (2014 P Cr. L J 1093).

7.         It is settled law that the Ex: Officio, Justice of Peace may refuse to issue direction regarding registration of case and may dismiss application under section 22-A (6) Cr.P.C., reminding the complaining person of his alternative statutory remedies under section 156 (3) Cr.P.C. and 190 Cr.P.C., as well as he has remedy to file criminal / private complaint under section 200 Cr.P.C. So also there are cases where complainant party may be inbetter position in pressing its allegations by filing criminal complaint, rather than forcing the police to register the criminal case and to investigate when the police itself was not convinced of the complainant party’s allegations being correct. In this respect reliance may be placed upon cases of ‘Kizar Hayat and others v. Inspector General of Police (Punjab) Lahore and others’reported in (PLD 2005 Lahore-470)and‘Habibullah v. Political Assistant Dera Ghazi Khan and others’(2005 SCMR 951).

8.         The Honourable Supreme Court has been pleased to observe in case of ‘Rai Ashraf and others v. Muhammad Saleem Bhatti and others’ (PLD 2010 Supreme Court 691) that; it is a settled law that each and every case is to be decided on its own peculiar facts and circumstances as law laid down in case of ‘Muhammad Saleem’(1994 SCMR 2213) and ‘Mushtaq Ahmed’ (PLD 1973 418).

9.         We have gone through the impugned order as well as record appended with the petition and found that impugned order is not speaking one and based on surmises and conjectures and it requires interference of this Court in exercise of constitutional jurisdiction, therefore, the constitution petition is allowed. Impugned order is set aside and petition under section 22-A & B (6) Cr.P.C. filed before Ex: Officio, Justice of Peach / 2nd Additional Sessions Judge, Hyderabad is dismissed with no order as to costs.

            Above are the reasons of our short order dated 21.12.2016.

JUDGE

JUDGE

Hyderabad.

Dated: 06.01.2017.

*Abdullah Channa/P.S*