ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Misc. Appln. No.S-91  of  2009.

Date of hearing

ORDER WITH SIGNATURE OF HON’BLE JUDGE

10.07.2009.

For Katcha Peshi.

Messrs Roshan Ali and Mubashar Ali Solangi, advocate for the applicant.

Mr. Naimatullah Bhurgri, State Counsel.

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                   This criminal miscellaneous application under Section 561-A, Cr.P.C has been filed by the applicant assailing the impugned order, dated 18.4.2009, passed by the learned II-Additional Sessions Judge, Larkana/Justice of the Peace, whereby the learned Court has dismissed the application of the applicant under section 22-A, Cr.P.C.

                   Brief facts of the case as per version of the applicant are that on 5.2.2009 at about 5.40 a.m. early in the morning he alongwith his nephew Ghulam Abbas, Ghulam Hyder was available in his house.  The proposed accused persons and police came in three mobiles to raid his house and searched the house, but nothing was recovered.  Thereafter, police took away his seven buffaloes, 12 beds, machine of water pump and also brike eight cots and robbed Rs.50,000/- from different boxes.  After that applicant went to P.S Naudero for the return of his robbed articles but police refused to return the same.  Thereafter, he went to respondent No.2 i.e. District Police Officer, Larkana for the return of his property and also submitted an application to D.P.O., Larkana but no heed was paid to it.   Thereafter, the applicant went to S.H.O PS Naudero for the return of his buffaloes, but the S.H.O informed him that his five buffaloes have been impounded under Section 134 of Police Rules, 2002, which are available at Maedji Cattle-pan.  The applicant enquired about rest of two buffaloes, the S.H.O told him that he has sold out the buffaloes in the sum of Rs.30,000/-.  It is further case of the applicant that thereafter he filed an application under Section 22-A & B (6)/(3), Cr.P.C in the Court of learned Sessions Judge/Justice of Peace with a prayer that his property may be returned to him and such application was disposed of on 30.3.2009 with directed not to harass him.  It is further case of the applicant that the learned Sessions Judge issued notice to respondent No.1/S.H.O PS Naudero and in the meantime transferred the application to learned II-Additional Sessions Judge, Larkana for disposal according to law, who issued notice to the D.D.A and called comments from respondent No.1/S.H.O PS Naudero and ultimately vide impugned order dated 18.4.2009 he has dismissed the the application of the applicant giving rise to filing of present application before this Court.

                   I have heard the learned Counsel for the applicant and the learned State Counsel.

                   Learned Counsel for the applicant advanced the arguments that the application filed by applicant under Section 22-A, Cr.P.C prima facie discloses the commission of a cognizable offence.  He has further added that sub-section (6) of Section 22-A, empowers an Ex-officio Justice of Peace to issue directions to police authorities concerned on a complaint regarding non-registration of criminal case, but the learned II-Additional Sessions Judge, Larkana has not taken into consideration the above provision of law.  He has further added that while passing impugned order the learned II-Additional Sessions Judge, Larkana has deeply gone into merits and demerits of the case, though he was only supposed to form an opinion about the offence being cognizable or non-cognizable from the facts narrated to him by the complainant orally or in writing and for such purpose he is not required to issue notice to accused or to police officer or to anybody else, he has to form his own independent opinion from the facts narrated to him.  He further added that as provisions of Section 154, Cr.P.C, the officer Incharge of the police station is required and bound to register F.I.R and he has no power to refuse to register the same, if from the information a cognizable office is made out.   Learned advocate for the applicant relied upon the case of Shahzado Dreho v. Khalid Mahmood Soomro, reported in 2003 P.Cr.L.J 319, case of Muhammad Ilyas v. Senior Superintendent of Police and another, reported in 1989 P.Cr.L.J 1129 and case of Mst. Bhaitan versus The State and 3 others, reported in PLD 2005 Karachi 621. 

                   Learned State Counsel supported the impugned order, dated 18.4.2009, passed by the learned II-Additional Sessions Judge, Larkana.  He has also filed parawise comments of the respondent No.4, which has been taken on record and copy of which has been supplied to learned advocate for the applicant, who has also filed parawise comments on reply of S.H.O PS Naudero.

                   I have heard the learned Counsel for the parties and perused the material available on the record, so also the case law relied upon by learned Counsel for the applicant.

                   I am of the considered opinion that the impugned order has been passed in violation of the mandatory provision of the law and the law laid down by the superior Courts, wherein it has been held by superior Courts that while passing impugned order the Court was only supposed to form an opinion about the offence being cognizable or non-cognizable from the facts narrated to him by the complainant orally or in writing and for such purpose he is not required to issue notice to the accused persons or to police or to anybody else.  He has to form his own independent opinion from the facts narrated to him.

                   Under peculiar facts and circumstances, the learned Additional Sessions Judge was not justified in refusing to give direction to S.H.O to record F.I.R if the cognizable offence is made out after recording the statement of the applicant.

                   Under Rule 24.1(2) of Police Rules, 1934, officer Incharge of police station on receiving information as to commission of cogniable offence was to record the same in First Information Register as well as in Station Diary, but under Rule 24.3 of Police Rules, 1934, the information with regard of non-cognizable offence was to be recorded in Station Diary only.

                   In view of the above, I am of the opinion that the learned advocate for the applicant has succeeded in making out a case in his favour.  In the result, impugned order, dated 18.4.2009 passed by the learned II-Additional Sessions Judge, Larkana is set aside and S.H.O PS Naudero is directed to record the statement of the applicant and proceed further in accordance with law.

                   The application stands disposed of in terms of the above.

                                                                                                JUDGE