ORDER SHEET
IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD.
Cr.Misc.Appl.No.S- 121 of 2009
DATE ORDER WITH SIGNATURE OF JUDGE
For Katcha Peshi.
Date of hearing: 17.5.2010.
Date of order:
Mr. Muhammad Sachal R. Awan, Advocate for applicant.
Mr. Shahid Shaikh, APG a/w Fida Hussain Mastoi, DPO Badin, Ghulam Muhammad Mandhro, SHO PS Badin and WHC Hadi Bux.
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O R D E R.
AQEEL AHMED ABBASI, J.-Through instant Criminal Miscellaneous Application, the applicant has impugned the order dated 15th March 2010 passed by learned IInd Additional Sessions Judge/Ex-Officio Justice of Peace, Badin whereby the application U/s 22-A & B Cr.P.C filed by the applicant has been dismissed.
The learned counsel for the applicant submitted that the impugned order is illegal and cannot be sustained in law as the offence alleged in the instant application filed by the applicant constitutes cognizable offence hence the learned IInd Additional Sessions Judge was under legal obligation to direct the concerned SHO to record the statement of the applicant in terms of allegations and further if cognizable offence is made out to register the F.I.R. against the accused persons. Learned counsel further pointed out that even the directions of learned trial Judge whereby action against one WHC Hadi Bux posted at PS Pangio Taluka Tando Bago District Badin vide order No.260 of 2010 dated 22nd February 2010 have yet not been complied with by the respondent No.2, i.e. the DPO Badin, which shows the malafide on the part of the police officials who are neither registering the F.I.R. against the accused persons nor complying with the directions of the learned IInd Additional Sessions Judge. The learned counsel further pointed out that as per police order 2002, in case of a complaint alleging cognizable offence, police was required to conduct an enquiry and to comply with the provisions of Section 154 to 157 Cr.P.C which unfortunately in the instant case has not been done. On the contrary, the applicant is being harassed by the official respondents so much so that WHC Hadi Bux had brutally beaten and injured the applicant after calling him at the police station and he was further threatened of dire consequences. This Court on 3.5.2010 directed the DPO Badin to submit compliance report pursuant to the order passed by learned IInd Additional Sessions Judge Badin in Criminal Miscellaneous Application No.64/2010. In compliance to the above directions, the DPO Badin on 17.5.2010 submitted compliance report wherein it has been stated that the order passed by learned IInd Additional Session Judge was duly complied with and the major punishment of “forfeiture of approved service for one year” to WHC Hadif Bux was awarded by DPO vide its order dated 12th March 2010 which has been annexed alongwith compliance report.
However, the learned counsel for applicant submitted that since he has impugned the entire order of learned IInd Additional Sessions Judge, Badin whereby his request for registration of F.I.R. against the accused persons in respect of the alleged offence contained in the application U/s 22-A & B Cr.P.C has been declined therefore, he prayed that the impugned order may be set aside and the respondents be directed to register the F.I.R. against the accused persons. In support of his contentions, the learned counsel placed reliance on the following cases:-
1. Tariq SiddiqueKhokhar and 5 others Vs. Additional Sessions Judge, Lahore and 3 others (2006 P.Cr.L.J 622).
2. Muhammad Bashir Vs. Station House Officer Okara Cantt. And others (PLD 2007 SC 539).
3. Kehar Khan Vs. Additional Sessions Judge and Ex-Officio Justice of Peace, Kotri and 3 others 2009 P.Cr.L.J 634).
On the other hand, the learned APG opposed the instant miscellaneous application on the ground that applicant is a habitual complainant and such complaints have duly been dismissed for being false. Learned APG referred to para 5 of the application U/s 22-A & B Cr.P.C filed by the applicant to show that contents of para 5 are improvement from the earlier case as contained in Criminal Miscellaneous Application No.64/2010 filed by the same applicant in respect of the same alleged offence. He further argued that allegations of the applicant on the face of it appear to be false and frivolous and further no cognizable offence has been alleged or made out therefore, the learned IInd Additional Sessions Judge was justified in disposing of the application filed U/s 22-A & B Cr.P.C in terms of impugned order dated 15th March 2010.
I have heard both the learned counsel, perused the record and the case law referred and relied upon by learned counsel for the applicant.
It appears that learned IInd Additional Sessions Judge Bdin while entertaining the complaint filed by the applicant alleging cognizable offence having been committed by the accused persons nominated therein, has acted beyond its jurisdiction provided in terms of Section 22-A & B Cr.P.C by finally disposing of the matter without realizing that unless a cognizable case is registered in terms of Section 154 Cr.P.C and investigation in terms of Section 155, 156 and 157 Cr.P.C is conducted, such summarily disposal of the allegations could not be made. It is the duty of a police officer that whenever a cognizable offence is reported, he like a prudent public functionary is required to conduct a preliminary investigation, collect the connecting material/evidence of the offence alleged and if he is satisfied that prima facie cognizable offence has been alleged, to register the F.I.R. U/s 154 Cr.P.C without being influenced as to whether the same shall prove to be true or false, as such aspect can only be examined after registration of the F.I.R. and during investigation of the case. Similarly, in terms of Section 22-A & B Cr.P.C, the learned IInd Additional Sessions Judge & Justice of Peace, on receipt of complaint alleging cognizable offence, after seeking comments from the concerned authority, is required to direct the concerned police officer to record the statement of the applicant and if a cognizable offence is made out to register the F.I.R. against the persons nominated therein. In the case of Muhammad Bashir (Supra), the Honourable Apex Court while defining the scope of Section 22-A & B Cr.P.C has held as under:-
“27. The conclusions that we draw from the above, rather lengthy discussion, on the subject of F.I.R., are as under:-
(a) no authority vested with an Officer Incharge of a Police Station or with anyone else to refuse to record an F.I.R., where the information conveyed, disclosed the commission of a cognizable offence.
(b) No authority vested with an Office Incharge of a Police Station or with any one else to hold any inquiry into the correctness or otherwise of the information which is conveyed to the SHO for the purposes of recording of an F.I.R.
(c) Any F.I.R. registered after such an exercise i.e. determination of the truth or falsity of the information conveyed to the SHO, would get hit by the provisions of section 162 Cr.P.C.
(d) Existence of an F.I.R. is no condition precedent for holding of an investigation nor is the same a prerequisite for the arrest of a person concerned with the commission of a cognizable offence.
(e) nor does the recording of an F.I.R. mean that the S.H.O or a police officer deputed by him was obliged to investigate the case or to go through the whole length of investigation of the case mentioned therein or that any accused person nominated therein must be arrested.
(f) The check against lodging of false FIRs, was not refusal to record such FIRs, but punishment of such informants under S. 182, P.P.C etc. which should be, if enforced, a fairly deterrent against misuse of the provisions of S. 154, Cr.P.C.
It has also been further held that:-
“36. For the purposes of this petition, we are concerned, primarily, with clause (i) of the above quoted provisions of subsection (6) of the section 22-A of the Cr.P.C. These provisions create a new forum to rectify a wrong done by an Officer Incharge of a Police Station by refusing to register a criminal case i.e. not recording an F.I.R. We have held above that the provisions of section 154, Cr.P.C. command a S.H.O to lodge an F.I.R. if the information conveyed to him disclosed the commission of a cognizable offence irrespective of the information being correct or incorrect. Undoing this wrong of non-registration of a criminal case would mean only an order to the S.H.O to register the case. The provisions of the said subsection (6) of section 22-A, Cr.P.C confer no additional powers on an Ex-officio Justice of the Peace to hold any enquiry to assess the credibility of such an information communicated for the purpose in question nor do the said provisions give any extra authority to the said Ex-officio Justice of the Peace to refuse registration or order non-registration of an F.I.R., in violation of or beyond the mandatory requirements of section 154, Cr.P.C.”
In the given facts and circumstances of the case and the dicta laid down by Honourable Apex Court in the above mentioned case, the impugned order is not sustainable in law to the extent whereby the matter has not been referred to the concerned police to take appropriate action on the complaint of the applicant alleging cognizable offence in accordance with law. Accordingly, the impugned order to this affect is set aside and the matter is remanded to the learned IInd Additional Sessions Judge & Ex-officio Justice of Peace, Badin with directions to pass a fresh order after providing a proper opportunity of hearing to the applicant in view of the dicta laid down by the Honourable Apex Court as mentioned hereinabove.
The Criminal Miscellaneous Application stands disposed of in the above terms.
JUDGE