IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Crl.M.A.No.156 of 2019

Date	Order with signature of Judge

Applicant: Sukhan Khatoon Jatoi in person.

Respondents: The State through

Mr. Khalil Ahmed Maitlo DPG.

Proposed accused: SIP Muhakmdin Siyal and others through Mr. Ajeebullah Junejo Advocate.

Date of Hearing: 10^th June, 2019.

Date of decision: 14^th June, 2019.

O R D E R.

ADNAN-UL-KARIM MEMON, J:- Through this Criminal Miscellaneous Application, Applicant has called into question the order 11.02.2019 passed by learned III-Additional Sessions Judge/Justice of Peace, Sukkur in Criminal Miscellaneous Application No. 329 of 2019, whereby he rejected the Application of the Applicant under Section 22-A & B, Cr.P.C on the premise that the Applicant being aggrieved by and dissatisfied with the impugned order has filed the instant Criminal Miscellaneous Application under Section 561-A Cr.P.C on 18.2.2019.

2. Applicant, who is present in person, has premised her case that on 4.2.2019 police party on the instigation of proposed accused forcibly entered in her house, made aerial firing and caused undue harassment to her and her family members, took valuable articles and set her house on fire. The applicant being aggrieved by and dissatisfied with the illegal acts of the accused filed Application under section 22-A & B Cr.P.C for registration of F.I.R against proposed accused, which was dismissed vide impugned order dated 11.02.2019. In support of her contention, she relied upon the documents attached with the memo of Application. Applicant has submitted that the proposed accused have committed cognizable offence but no F.I.R was registered by the Police in connivance with private respondents; that learned Court below has passed the impugned order, which is erroneous one, without application of judicial mind. she next submitted that learned Court has wrongly observed that it has no jurisdiction to entertain the Application under Section 22-A & B, Cr.P.C; that the learned Court is vested with the power under Section 22-A & B, Cr.P.C. for registration of criminal case; that registration of F.I.R is very much necessary for just and proper conclusion of the dispute between the parties; that learned Court due to misunderstanding the real facts has not appreciated the version of the Applicant and has also not appreciated the evidence adduced by the Applicant. The order impugned herein is not a speaking order and the same is liable to be set aside.

3. In rebuttal, learned Deputy Prosecutor General, Sindh assisted by Mr. Ajeebullah Junejo learned Counsel for the private Respondents raised the question of maintainability of the instant Criminal Miscellaneous Application on the ground that the police has taken legal action against the real culprits, who have been involved in heinous crimes, and the cases against them are pending in the competent Court of law; that the Applicant has filed the instant Criminal Miscellaneous Application in order to pressurize the police department not to do their lawful duty, even otherwise no cognizable offence has been made out to attract section 154 Cr.P.C. He supported the Impugned order passed by the learned Justice of Peace. In support of his contention he relied upon the comments filed on behalf of the official respondents. He lastly prayed for dismissal of the present Criminal Miscellaneous Application.

4. I have considered the submissions of the Applicant, who is present in person and examined the record carefully.

5. In order to appreciate the submissions advanced and to answer the opinion expressed in the impugned order it is necessary to reproduce the Section 22-A & B, Cr.P.C:-

“22-A. Powers of Justice of the Peace. (1) A Justice of the Peace for any local area shall, for the purpose of making an arrest, have within such area all the powers of a Police Officer referred to in section 54 and an officer in-charge of a police-station referred to in section 55.

(2) A Justice of the Peace making an arrest in exercise of any powers under subsection (1) shall, forthwith, take or cause to be taken the person arrested before the officer in-charge of the nearest police-station and furnish such officer with a report as to the circumstances of the arrest and such officer shall thereupon re-arrest the person.

(3) A Justice of the Peace for any local area shall have powers, within such area, to call upon any member of the police force on duty to aid him:

(a) in taking or preventing the escape of any person who has participated in the commission of any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having so participated; and

(b) in the prevention of crime in general and, in particular, in the prevention of a breach of the peace or a disturbance of the public tranquility.

(4) Where a member of the police force on duty has been called upon to render aid under subsection (3), such call shall be deemed to have been made by a competent authority.

(5) A Justice of the Peace for any local area may, in accordance with such rules as may be made by the Provincial Government:

(a) issue a certificate as to the identity of any person residing within such area, or

(b) verify any document brought before him by any such person, or

(c) attest any such document required by or under any law for the time being in force to be attested by a Magistrate, and until the contrary is proved, any certificate so issued shall be presumed to be correct and any document so verified shall be deemed to be duly verified, and any document so attested shall be deemed to have been as fully attested as if he had been a Magistrate.

22-B. Duties of Justices of the Peace. Subject to such rules as may be made by the Provincial Government, every Justice of the peace for any local area shall,

(a) on receipt of information of the occurrence of any incident involving a breach of the peace, or of the commission of any offence within such local area, forthwith make inquiries into the matter and report in writing the result of his inquiries to the nearest Magistrate and to officer in charge of the nearest police station.

(b) if the offence referred to in clause (a) is a cognizable offence, also prevent the removal of anything from, or the interference in any way with, the place of occurrence of the offence;

(c) when so required in writing by a police-officer making an investigation under Chapter XIV in respect of any offence committed within such local area.

(i) render all assistance to the police-officer making such an investigation.

(ii) record any statement made under expectation of death by a person in respect of whom a crime is believed to have been committed'.]”

6. The insertion of subsection (6) in Section 22-A and Section 25 of Cr.P.C. whereby Sessions Judges and on nomination by them the Additional Sessions Judges became the Ex-officio Justices of Peace, has advanced and speeded the dispensation of justice. The object of insertion of subsection (6) was that an aggrieved person could get remedy in time at his doorstep, earlier what he could not get despite approaching this Court. The grievance of a person having no means and resources went unattended and un-redressed altogether. Wealthy, well off and well-connected people exploited this situation. They committed the crime and yet went scot-free. But ever since the day the Sessions Judges and on nomination by them the Additional Sessions Judges became the Ex-officio Justices of Peace, no rich and well off person could break the law with impunity or obstruct the person oppressed and assaulted from seeking remedy at his doorstep. If the SHO of a Police Station, owing to the influence and affluence of any, refused to register a case, resort could be had by moving a simple application to the Ex-officio Justice of Peace for issuance of an appropriate order or direction. Aggrieved person, who could not afford the luxury of engaging a lawyer in the past for filing writ petition in this Court to get the desired relief, could seek an order or direction from the Ex-officio Justice of Peace without spending much. He could complain against the neglect, failure or excess committed by the Police Authorities in relation to its functions and duties which in the past was no less than living in Rome and fighting with the Pope. Reliance is safely placed in the case of Younus Abbas and others v. Additional Sessions Judge, Chakwal and others (PLD 2016 Supreme Court 581).

7. The larger Bench of the Hon’ble Supreme Court in Younus Abbas and others (supra) while discussing powers of the Ex-officio justice of peace under Section 22-A and 22-B has held as follows:

“The duties, the Justice of Peace performs, are executive, administrative, preventive and ministerial as is evident from subsections (1), (2), (3), (4) and (5) of Sections 22-A and 22-B of the Cr.P.C. Such duties have not been a subject matter of controversy nor have they ever been caviled at by anybody. Controversy emerged with the insertion of subsection (6) in Section 22-A and Section 25 of the Cr.P.C. when Sessions Judges and on nomination by them the Additional Sessions Judges became the Ex-officio Justices of Peace. The functions, the Ex-officio Justice of Peace performs, are not executive, administrative or ministerial inasmuch as he does not carry out, manage or deal with things mechanically. His functions as described in Clauses (i), (ii) and (iii) of subsection (6) of Section 22-A, Cr.P.C., are quasi-judicial as he entertains applications, examines the record, hears the parties, passes orders and issues directions with due application of mind. Every lis before him demands discretion and judgment. Functions so performed cannot be termed as executive, administrative or ministerial on any account. We thus don't agree with the ratio of the judgments rendered in the cases of Khizar Hayat and others v. Inspector General of Police (Punjab), Lahore and others (PLD 2005 Lah. 470) and Muhammad Ali v. Additional I. G. (PLD 2015 SC 753) inasmuch as it holds that the functions performed by the Ex-officio Justice of Peace are executive, administrative or ministerial.”

8. The record of the present case shows that upon application of applicant under Section 22-A, (6) (i), the learned Ex-Officio Justice of Peace passed the order on 11.02.2019, relevant portion whereof is reproduced as under:-

“I am expected to consider all the material in totality keeping forth the settled position of law. Ex-Officio Justice of Peace, cannot act as post office and issue directions without using own mind as held in case of Abdul Latif Vs Mst.Hakim Zadi and 2 others (2013 P.Cr.L.J 813). Honourable Supreme Court of Pakistan has settled the parameters on powers and duties of Ex-Officio Justice of Peace, in case of Younas Abbas Vs. Additional Sessions Judge, Chakwal (2016 PLD 581 SC). Guidelines for issuance of direction on a complaint for non-registration of a criminal case are also given in the case mentioned and for clarification purpose, relevant para is respectfully reproduced as under:-

“(i)The ex-officio Justice of the Peace, before issuance of a direction on a complaint for the non-registration of a criminal case under subsection (6)(i) of section 22-A, Code of Criminal Procedure must satisfy himself that sufficient material is available on the record, such as application to the concerned SHO for registration of the criminal case and on his refusal or reluctance, complaint to the higher police officers i.e. DPO, RPO etc, to show that the aggrieved person, before invoking the powers of ex-officio Justice of the Peace, had recourse to the high ups in the police hierarchy.”

Above settled position of law clarifies that application for registration of F.I.R should be made to concerned SHO and after his refusal such complaint should be made to higher police official. After all these steps, one can approach Ex-Officio Justice of Peace. Honourable Supreme Court Pakistan has provided full scheme of action in case respectfully mentioned supra and one has to follow it to get the relief, as per law. Clearly, applicant has not availed the remedy available to her in proper manner. Applicant is at liberty to avail the above mentioned remedy through the procedure settled by Honourable Supreme Court of Pakistan in case mentioned supra (if he desires so). Moreover, the applicant has mentioned in para No.7 of her application that she has no alternate remedy but I am not convinced with this ground, as applicant has the remedy to file direct complaint, which is also an efficacious remedy and same is not exhausted yet”.

9. It has been agitated that the provision of Section 22-A & B, Cr.P.C when examined in juxtaposition with Section 154 of Criminal Procedure Code bears material similarity between the two and thus justice of peace is also empowered to order for registration of a criminal case under Section 154 Cr.P.C.

10. Before dilating further on the aforesaid proposition, it does not, in anyway, take away or affect the powers of Justice of Peace to order for registration of criminal case as provided under Section 22-A & B, Cr.P.C. Therefore it would be appropriate for Ex-Officio Justice of Peace before issuance of such direction for registration of the criminal case to satisfy him from the available record regarding registration of the criminal case thus; he has rightly declined the request of the applicant for registration of criminal case.

11. Record reflects the following factual position of the case:-

The details of Criminal cases against Criminal Imam Din Misrani Jatoi Husband of petitioner are as under:-

01. Cr.No.08/2000 u/s 279, 14/H.O of PS Gudpur

02. Cr.No.12/2001 u/s 302 PPC of PS Raza Goth

03. Cr.No.102/2005 u/s 302 PPC of PS Pano Akil.

04. Cr.No.25/2009 u/s 302 PPC of PS Bachal Bhayo District Shikarpur.

05. Cr.No.16/2013 u/s 460, 459, 395, PPC of PS Raza Goth.

The details of criminal Notified Reward Head Money 10 Lacs vide Notification order No.POL-II-HD-12-12-2008 dated 08.09.2009 (Attached photo Copy) Dacoits Muneer Ahmed Missrani Jatoi Cousin of Petitioner are as under:-

01. Cr.No.04/2004 u/s 353, 324, 399, 402, PPC of PS Bachal Bhayo District Shikarpur

02. Cr.No.12/2004 u/s 353, 324, PPC -do-

03. Cr.No.10/2004 u/s 324, 353, PPC -do-

04. Cr.No.11/2004 u/s 7ATA -do-

05. Cr.No.12/2004 u/s 324, 353, PPC -do-

06. Cr.No.16/2004 u/s 324, 353, PPC -do-

07. Cr.No.30/2002 u/s 17/3 HO -do-

08. Cr.No.14/1998 u/s 382 PPC of PS Raza Goth.

09. Cr.No.16/2013 u/s 450, 460, 395, PPC of PS Raza Goth.

10. Cr.No.05/2016 u/s 395, 324, PPC of PS Raza Goth.

11. Cr.No.04/2018 u/s 302 PPC of PS Raza Goth.

12. Cr.No.04/2018 u/s 302, 324, 395 PPC of PS Khaehri.

13. Cr.No.06/2004 u/s 324, 353, PPC of PS Qarapur.

14. Cr.No.64/2016 u/s 324, 353, PPC -do-

12. The primordial question arises whether once challan in various cases are submitted in the Court of law against the husband of the Applicant and other family members and the Court has taken the cognizance of the matter, no registration of criminal case can be ordered against the police on the analogy that they have caused harassment and damaged the valuables of the applicant, for the simple reason that the applicant can resort by filling Direct Complaint against the proposed accused before the competent court of law.

13. The question involved in the present proceedings is whether registration of F.I.R is the only solution or the applicant has another remedy of filing the direct complaint as provided under section 200 Cr.P.C?

14. I have gone through the comments filed on behalf of the police department, hereby they have disclosed as under:-

“I SIP Muhkum Din Siyal, Station House Officer Police Station Raza Goth, District Sukkur (Respondent No.03) do hereby respectfully submit as under:-

01. That, I have gone through the contents of above petition and

allegations leveled against me are false and fabricated hence vehemently denied The undersigned is submitting the actual facts before this Honourable Court.

02. It is prayed that namely Imam Din Jatoi husband of above named petitioner criminal type of person and involved in criminal cases and other relative of petitioner wanted in criminal cases. The petitioner residing in District Shikarpur due to enmity of Jatoi and Mahar tribe.

03. That, as usual it is habit of criminals to bring their parentage

04. That the first line for creating hindrances against the Police by filing false applications/petitions in the Honourable Courts with the ill intention of criminals doing to save their illicit activities and put undue pressure upon local Police and 20 cases registered against other relative of petitioner.

05. That, the above petitioner Mst.Sukhan Khatoon already filed Cr.Misc.A.No.329/2019 filed u/s 22-A and 22-B Cr.P.C in the Honourable Court of Additional Sessions Judge, Sukkur. The same petition Honourable Court dismissed accordingly on 11 February 2019 order copy attached herewith for favour of kind perusal.

06. However, if any action is required by the law the same will be taken according to law.

07. The factual facts are submitted before this Honourable Court and if any order will be passed by this Honourable Court same will be complied with accordingly.

15. Veracity of allegations regarding maltreatment, taking away of valuables and cash amount, burring the houses during the raid. These allegations and counter allegations can only be thrashed out after through probe and that can only be determined if the applicant brings her case before the concerned Magistrate under section 200 Cr.P.C, for the simple reason that the complaint was against SHO concerned area and other police officials and private individuals. It would be appropriate to reproduce relevant provisions of Code of Criminal Procedure 1898:-

200. Examination of complainant: A Magistrate taking, cognizance of an offence on complaint shall at once examine the complainant upon oath, and the substance of the examination shall be reduced to writing and shall be signed by the complainant, and also by the Magistrate: Provided as follows:

(a) when the complaint is made in writing, nothing herein contained shall be deemed to require a Magistrate to examine the complainant before transferring the case under section 192 [or sending it to the Court of Session];

(aa) when the complaint is made in writing nothing herein contained shall be deemed to require the examination of a complainant in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties;

(b) [Omitted A.O., 1949, Sch.];

(c) when the case has been transferred under section 192 and the Magistrate so transferring it has already examined the complainant, the Magistrate to whom it is so transferred shall not be bound to re-examine the complainant.

202. Postponement of issue of process:

(1) Any Court, on receipt of a complaint of an offence of which it is authorized to take cognizance; or which has been sent to it under section 190, subsection (3), or referred to it under section 191 or section 192, may, if it thinks fit, for reasons to be recorded, postpone the issuance of process for compelling the attendance of the person complained against, and either inquire into the case itself or direct any inquiry or investigation to be made by [any Justice of the Peace or by] a police officer or by such other person as it thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint:

Provided that save, where the complaint has been made by a Court, no such direction shall be made unless the complainant has been examined on oath under the provisions of section 200.

(2) A Court of Session may, instead of directing an investigation under the provisions of subsection (1), direct the investigation to be made by any Magistrate subordinate to it for the purpose of ascertaining the truth or falsehood of the complaint.

(3) If any inquiry or investigation under this section is made by a person not being a Magistrate [or Justice of the Peace] or a police officer, such person shall exercise all the powers conferred by this Code on an officer-in-charge of a police station, except that he shall not have power to arrest without warrant.

(4) Any Court inquiring into a case under this section may, if it thinks fit, take evidence of witnesses on oath].

203. Dismissal of complaints: [The Court], before whom a complaint is made or to whom it has been transferred, [or sent] may dismiss the complaint, if, after considering the Statement on oath (if any) of the complainant and the result of the investigation or inquiry (if any) under Section 202 there is in his judgment no sufficient ground for proceeding. In such cases he shall briefly record his reasons for so doing.

204. Issue of process:

(1) If in the opinion of a [Court] taking cognizance of an offence there is sufficient ground of proceeding, and the case appears to be one in which, according to the fourth column of the Second Schedule, a summons should issue in the first instance, [it] shall issue his summons for the attendance of the accused. If the case appears to be one in which, according to that column, a warrant should issue in the first instance, [it] may issue a warrant, or, if [Court] or if [it] thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such [Court] if as if it has no jurisdiction itself some other Court having jurisdiction.

(2) Nothing in this section shall be deemed to affect the provisions of section 90.

(3) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid, and if such fees are not paid within a reasonable time, the Court may dismiss the complaint.

16. During the course of hearing of this Application I inquired from the Applicant as to why she was insisting upon registration of FIR in respect of her version of the incident especially when she has remedy to institute a private complaint containing her version of the incident and the accused persons in her private complaint can be summoned by the concerned Court to face a trial if she is able to prove her allegations against them. In response to that query the applicant had categorically stated that she wanted the accused persons in her version of the incident to be arrested and recoveries to be effected from them which were not possible through the medium of a private complaint. Such understanding of the law on the part of the applicant, which understanding is also shared by a large section of the legal community in our country, has been found by us to be erroneous and fallacious. By virtue of the provisions of section 202(1), Cr.P.C. a Court in a private complaint can direct an inquiry or investigation to be made by any Justice of the Peace or by a Police Officer or by such other person as it thinks fit. If in a given case the Court in a private complaint deems it appropriate can direct an investigation to be carried out in respect of the allegations made then the powers available during an investigation, enumerated in Part V, Chapter XIV of the Code of Criminal Procedure, 1898 read with section 4(1) (l) of the same Code, include the powers to arrest an accused person and to effect recovery from their possession or at her instance. Such powers of the Investigating Officer or the investigating person recognize no distinction between an investigation in a State case and an investigation in a complaint case. The object of investigation under section 202 of the Code is to enable the Court to scrutinize carefully the allegations with a view to protect a person complained against from being summoned to face frivolous accusations. Section 202 of the Code, in fact, is an enabling provision so as to empower the Court to hold an effective inquiry into the truthfulness or otherwise of the allegations leveled in the complaint for the purposes of forming an opinion whether there exist sufficient grounds to proceed further or not. Therefore, inquiry/investigation under section 202 of the Code is not a futile exercise and is to be taken into consideration by the Court while deciding whether process is to be issued or not.

17. The object and purpose of registration of a criminal case is to probe and find evidence and place all such material before a Court of competent jurisdiction and not to satisfy the complainant/aggrieved person and if any such material is provided by the investigating agency, that would definitely help the Court for arriving at just conclusion. Nothing has been pointed out that the impugned order shall prejudice the case of the applicant if she approaches and file direct complaint against the alleged excess of police and private party.

18. In view of above, the captioned Criminal Miscellaneous Application is without any merit, the same stands dismissed. However the Applicant is at liberty to approach the concerned Magistrate and file Direct Complaint for redresal of her grievances if so advised, and the same is required to be decided in accordance with law, if filed.

JUDGE

Akber.