IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Misc. Application No.S-660 of 2020

Applicant: Yar Muhammad through Mr. Achar Khan Gabol, Advocate.

Respondent No.4: Nisar Ahmed through Mr. Amir Mustafa Kamario, Advocate.

State: Through Shafi Muhammad Mahar, D.P.G.

Date of hearing: 18.10.2021

Date of decision: 18.10.2021

O R D E R

Zulfiqar Ali Sangi, J: Through this application, the applicant has assailed the order dated 12.11.2020, passed by learned Additional Sessions Judge (Hudood)/Ex-Officio Justice of Peace, Sukkur, wherein an application under Section 22-A(6)(i) & 22-B Cr.P.C, filed by the Respondent No.4, was allowed.

2. Learned Counsel for the Applicant, at the very outset, submits that learned Additional Sessions Judge (Hudood)/Ex-Officio Justice of Peace, Sukkur, without applying his judicious mind, in a hurriedly manner, passed the impugned order, which is not tenable under the law; that earlier aunt of Respondent No.4 has filed similar application on the similar grounds, which was dismissed on 12.10.2020; however application filed by Respondent No.4 on the similar grounds was allowed through impugned order; that no offence as alleged has ever taken place; that there is enmity in between the parties; that the motive behind filing of application is only to harass, humiliate and pressurize the applicant to withdraw from the cases pending against Respondent No.4; that the impugned order is based on surmises and conjectures. At the end, he submits that instant application be allowed and the impugned order dated 12.11.2020 passed by learned Justice of Peace may be set-aside. In support of his contention, learned Counsel placed reliance upon the case law reported as 2017 P Cr L J Note 107, 2019 YLR 510 and 2008 P Cr L J 1358.

3. Learned counsel representing the Respondent No.4 submitted that learned Justice of Peace has rightly passed the impugned order directing the SHO to record the statement of Respondent No.4 as there is injury/fracture on his left arm, which was caused him by the Applicant party and in this regard certain documents showing injury have been placed on record hence this Court does not require any interference in the impugned order and prayed for dismissal of this application.

4. Learned DPG has supported the impugned order and submits that cognizable offence is made out as there is injury/fracture on the left arm of Respondent No.4; however he could not controvert the fact of admitted enmity between the parties and dismissal of earlier application for the same relief by the same justice of peace.

5. I have heard learned Counsel for the parties and have gone through the material available on record.

6. Record reflects that parties were having dispute over a landed property and in this regard prior to filing of application by Respondent No.4 wherein impugned order was passed, similar application averred therein similar facts of incident of same date and time was filed by aunt of Respondent No.4, namely Mst. Imamzadi which was dismissed by the same Justice of Peace vide order dated: 12-10-2020. The respondent No.4 after the said application was dismissed, filed an application of same incident on 19-10-2020 which was allowed by the same Justice of Peace vide order dated: 12-11-2020. It is further observed that an FIR bearing Crime No.121/2020 has already been registered by the Applicant against Respondent No. 4, hence application filed by Respondent No.4 against the present applicant is a counter blast to cause harassment to the applicant party to settle his account of animosity. While dismissing the application of Mst. Imamzadi learned Justice of Peace observed as under:-

After hearing of both the parties and gone through the material available on record, I am of the humble conclusion that there is admitted civil nature dispute between the parties upon the said disputed land. Prior to this both the parties have lodge FIRs against each other, even at present both the parties have filed Cr. Misc. application for lodgment of FIR against each other, applicant party has failed to produce any medico legal certificate etc, for believing their version, that they have been actually beaten by the proposed accused (as stated).

Therefore in view of above discussed facts and circumstances I do not found any force in the contentions of the applicant and in such like nature matter, passing a order for lodgment of FIR against propose accused would be harsh. As the applicant has failed to produce any sufficient prima facie material for believing her version about happening of alleged incident, therefore instant application is hereby dismissed.

However both the parties would be at liberty to avail their remedy before the proper forum for declaration of ownership of the disputed land.

7. It is duty of the Ex-officio Justice of Peace to scan the averments of application for registration of F.I.R, he must apply his judicial mind being a Senior Judicial Officer and adjudge the entire set of allegations cautiously. Ex-officio Justice of Peace is not bound to issue directions to police in each and every case to record the statement of complainant if apparently no cognizable offence is made out or complaint is tainted with malice and based on ulterior motives, he can call report from SHO concerned to examine the authenticity of the allegations leveled against the defending party. Ex-officio Justice of Peace should also keep in his mind the aspect that any direction issued unnecessarily or in routine manners shall cause humiliation, harassment and mental agony to the proposed accused and it would take years to conclude the trial of the case arisen out of any F.I.R. It is basic duty of the Justice of peace that such misuse be taken carefully and these applications should not be lightly entertained and decided in a mechanical manner for issuing directions to the police to lodge F.I.R; conduct investigation and prosecuting the alleged accused. I am fortified with the principle laid down in case of Imtiaz Ahmed Cheema V/S S.H.O P.S Daharki, Ghotki (2010 YLR 189), 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 provisions of section 22-A, Cr.P.C. The Courts in mechanical manner should not allow applications 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.”

8. In the case in hand firstly the application was filed by Mst. Imamzadi for the same offence which was rejected by the Ex-officio Justice of Peace and after its dismissal the second application was filed by the respondent No. 4 which was allowed without verifying the grounds for dismissal of application in his earlier order though the same was pointed out by learned counsel for the proposed accused as has been mentioned in the impugned order.

9. In view of the above, it appears that the Ex-officio Justice of Peace has committed gross illegality and irregularity while passing impugned order. Accordingly, instant Criminal Miscellaneous Application is allowed, impugned order dated 12.11.2020, passed by Additional Sessions Judge (Hudood)/Ex-officio Justice of Peace, Sukkur is set-aside. However it will be open to the respondent No.4 to file direct complaint, if so advised and observations made in these proceedings will not come in the way of the complainant. The proposed complaint, if filed will be decided on its own merits.

10. These are the reasons of short order dated: 18-10-2021.

JUDGE