IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Crl. Misc. Appln. No.S-95 of 2022.

Date Order with Signature of Judge

Hearing of case

1. For orders on office objection at flag ‘A’

2. For hearing of main case

3. For hearing of M.A. No.856/22.

Applicants: Saeed Ahmed Bhayo and others, Through Syed Jaffer Ali Shah, Advocate.

Respondent. Ali Sher, through Agha Imran Khan Pathan, Advocate.

The State: Through, Khalil Ahmed Maitlo, Deputy Prosecutor General, Sindh.

Date of Hearing: 20.03.2023

Date of Order: 20.04.2023

>>>>>>…<<<<<<<<

O R D E R

ABDUL MOBEEN LAKHO, J; The applicants/proposed accused by way of instant Criminal Miscellaneous Application under Section 561-A, Cr.P.C, has impugned the order dated 17.02.2022 passed by learned Ex-Officio Justice of Peace/2^nd. Additional Sessions Judge, Khairpur on application under Section 22-A and 22-B Cr.P.C, whereby respondent No.1 was directed to approach the SHO P.S Babarloi to record the statement of respondent No.1 and if from the statement of respondent No.1 any cognizable offence made out, same shall be incorporated in FIR, which is impugned in the instant application by the applicants/proposed accused.

2. The facts in brief necessary for disposal of instant Criminal Miscellaneous Application are that the applicant filed a criminal Miscellaneous application u/s 22-A and B Cr.P.C seeking direction to record his statement/or registration of FIR against the proposed accused, namely, Saeed Ahmed Bhayo/SHO Police Station Babarloi, Gul Muhammad Mahar/ Incharge CIA Khairpur, ASI Ali Akber Chachar, Nazeer Ahmed Chachar/I.O. P.S Babarloi, Ghulam Hyder Thebo/WHC P.S Babarloi and Fayaz Abro/WHC CIA, on the ground that Ghulam Yaseen Behrani nephew of applicant (herein called as respondent No.1) was WHC at Police Station Shalkot serving in Quetta Police and was residing in Dour who alongwith his cousin Amanaullah and Muhammad Azam left Dour town for meeting with his relatives on 21.09.2021 in the (Corolla) Xli bearing Registration No.AMZ-0202 and when reached at Sukkur dropped witnesses with an undertaking that they will meet at evening time but at evening time his Cell phone was switched-off. On 22.09.2021 witness Muhammad Azam received phone call from I.O./proposed accused that Ghulam Yasin is in police custody at Police Station, Babarloi hence, the applicant party came at Police Station, Babarloi met with Ghulam Yaseen in lock-up who was crying as he was brutally tortured by proposed accused where SHO P.S Babarloi demanded Rs.50,000/- which was paid by the applicant but he was not released and while they were returning back and reached near Shikarpur witness Azam received a phone Call from I.O. who told that Ghulam Yaseen has committed suicide on which applicant party rushed back to the Police Station and saw the proposed accused available at Police Station while Ghulam Yaseen was lying on earth in lock-up Hanged by a Nara with window at height of hardly three ft” from the ground and they found Ghulam Yaseen murdered by way of causing torture and concocted story narrated by the proposed accused of suicide that the deceased hanged him by (Nara) of Shalwar which was tied to the window of lock-up room but in fact deceased died due to electric shocks, and such marks were available on his body and applicant party recorded such Video of torture marks and also took photographs. Applicant/respondent No.1 approached SHO for registration of FIR but they refused, hence applicant/respondent No.1 finding no other alternate filed Crl. Misc. application before Court of Sessions Judge/Ex-Officio Justice of Peace seeking directions, who vide impugned order dated 17.02.2022 issued directions to applicant to approach the SHO Police Station, Babarloi to record the statement, giving rise to the present application.

3. It is contended by learned counsel for the applicants that deceased Ghulam Yaseen Behrani was initially arrested on 21.09.2009 by ASI Ali Akber Chachar and huge quantity of Charas/contraband weighing 30 Kilogram was recovered from him, such FIR bearing Crime No.98/2021 was registered at Police Station, Babarloi and remand of one day was also obtained by Investigating Officer; that during remand period deceased Ghulam Yaseen was kept in Police lock-up Babarloi, where he committed suicide with the help of Cord (Nara) tied his neck and hanged himself and when police learnt, reported the matter to the concerned Magistrate i.e. Ist Civil Judge & J.M, Khairpur who immediately arrived at Police Station where his legal heirs, namely, Amanullah son of Habibullah and Muhammad Azam son of Muhammad Hashim were available in their presence the dead body of deceased was removed by learned Magistrate and he did not find any mark of injury or violence or physical beating on his body; the inquiry was conducted by learned Magistrate. He lastly prayed that the impugned order may be set-aside.

4. Learned DPG for the State assisted by learned counsel for the respondents by supporting the impugned order sought for dismissal of the instant Criminal Miscellaneous application by contending that there applicants/proposed accused have committed brutal murder of a innocent young person only on demand of illegal gratification; however, no suicide was committed by the deceased in fact deceased was died as a result of torture by the police; that the window’s height was 6 ft” and there was no reach of deceased at the height.

5. I have heard the learned counsel for the applicants, respondent as well as learned Deputy Prosecutor General for the State and perused the record.

It was urged on behalf of the applicants that an inquiry was conducted by the Magistrate into the cause of death of deceased Ghulam Yaseen. The relevant portion of the inquiry is reproduced as under;

“That sir, undersigned received message from the Police Station Babarloi that the accused/deceased had committed suicide in lock-up. Thereafter, I had processed to supervise proceedings in compliance of Honourable Sessions Judge order dated 22.04.2022. The legal heirs of deceased and police officials were presence there. The no such marks of violence and injuries were found on his body. The legal heirs, namely, Amanullah and Muhammad Azam got recorded their statements that they had met with deceased and he had not complaint maltreatment on hands of police and on way they had been informed that the deceased had hanged himself. After completing all codal formalities at Police Station, body was shifted to RHC Garhi Mori Khairpur, where from body was shifted to KMC Khairpur Hospital Khairpur, whereafter necessary X-rays and postmortem body was handed over to legal heirs. Thereafter, Dr. Abdul Waheed had send provisional medical report of deceased and such report had been submitted to Honourable Sessions Judge, Khairpur under office letter No.2167/2021 vide dated 12.10.2021.

That sir, after receiving final medical report, wherein Dr. Abdul Waheed had declared cause of death as “Hanging” and such final inquest report had been sent to Honourable Sessions Judge, Khairpur under offence letter No.179/2022 dated 16.02.2022.”

Section 176 of the Code of Crl. Procedure empowers a Magistrate to hold an inquiry contemplated by clauses (a), (b) and (c) of subsection (1) of Section 174 of the Code in place of or in addition to an investigation held by a police officer. So far as the registration of a criminal case is concerned, it is the independent right of an aggrieved person, who can report the matter to the incharge of the concerned Police Station who is bound under the provisions of Section 154 of the Cr.P.C to record his report and conduct investigation in accordance with law. The inquiry report may be relied upon by the prosecution or the defence and may be given due weight if the conclusion arrived at by the Magistrate, is consistent with the evidence brought on the record. Otherwise, a police officer or a Court of law can legitimately arrive at a contrary finding in the light of the evidence brought on the record.

The Medico-legal Officer conducting postmortem examination had opined that Ghulam Yaseen had died due to hanging but the allegations are that after arresting him, Saeed Ahmed Bhayo, SHO and his subordinate police officials had subjected Ghulam Yaseen to severe torture and had also been demanding bribe from him these are serious allegations and cannot be left unattended. Punishment is the only way to deter a crime and no crime shall go unpunished.

6. It goes without saying that once the allegation with respect to the commission of a cognizable offence is communicated to police, the police is duty bound to register a case. In case of Sana Ullah versus S.H.O, Police Station, Civil Line Gujrat and 3 others (PLD 2003 Lahore 228) while interpreting Section 154 Cr.P.C, it was held that words used in Section 154 of the Cr.P.C “every information relating to commission of a cognizable offence” pertains only to the information so supplied and do not pertain to actual commission of the cognizable offence and that information supplied be about an alleged commission of a cognizance offence irrespective of its truthfulness or otherwise and concerned police official has to satisfy himself only to the extent that the information is in respect of a cognizable offence. It was also held that at the time of first information report, accused persons named in the complaint have no right of hearing. It is, therefore, obvious that if, there is an information regarding commission of a cognizable offence, the police officer concerned is under statutory obligation, without hearing the accused person, to enter it in the prescribed register. Failure of the concerned Police Officer to register a complaint so made or his resorting to delaying tactics, amounts to failure to discharge statutory obligation, which attracts provisions of Section 22-A(6)(i), Cr.P.C.

7. I find no weight in the arguments of learned counsel for the applicant. The aggrieved person is well within his rights to approach the Justice of Peace under Section 22-A(6)(i), Cr.P.C, with a prayer for registration of the case, and if, the Justice of Peace comes to the conclusion that a cognizable offence is apparent from the data available on the record, he can pass an order for recording of the statement verbatim and from the statement if a cognizable offence is made out the law shall come in motion at once. As such, the justice of peace is saddled with the administrative duty to redress the grievances of the complainants aggrieved by refusal of police officer to register their reports. However, he is not authorized to assume the role of investigating agency or prosecution. Even minute examination of the case and fact findings upon the application and report of police is not included in the function of the justice of Peace. It may also be observed that every citizen has got a right to get his complaint registered under Section 154 Cr.P.C with local police when complain spells out a cognizable offence, and a safeguard against false complaint is provided under Section 182 PPC, whereby a person giving false information to an officer in-charge of a police station can be prosecuted for an offence punishable under Section 182 or Section 211 of the PPC, if such information is found to be false.

8. For the foregoing facts and reasons, there appears no illegality or irregularity in the impugned order dated 17.02.2022 passed by Additional Sessions Judge-II/Ex-Officio Justice of Peace, Khairpur requiring any interference of this Court under its inherent powers under Section 561-A, Cr.P.C. Accordingly, the instant Criminal Miscellaneous Application is dismissed.

Crl. Misc. Application stands disposed of.

J U D G E

Ihsan/*