ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.

Cr. Misc. Appln. No. S- 185 of 2020.

Date                            Order with signature of Hon’ble Judge

1.For orders on office objection as flag A.

2.For hearing of  main case.                     

19.10.2020.

Mr.  Nooruddin Mahessar, advocate for the applicant.

Proposed accused present in person.

Mr. Ali Anwar Kandhro, Addl. P.G.

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NAIMATULLAH PHULPOTO-J.:- Through this criminal miscellaneous application under Section 561-A Cr.P.C, applicant has called in question order dated 29.4.2020 passed by the learned 2^nd Additional Sessions Judge/Ex-Officio Justice of Peace, Kamber in  Cr. Misc. Appln. No. 403 of 2020 re: Akhtar Hussain v. The SHO P.S Mahi Makol  whereby application filed by the applicant  under Section 22 A and B Cr.P.C for seeking directions to SHO for registration of F.I.R was dismissed.

            2.         Brief facts leading to filing of this application are that on 30.3.2020 at 5.00 P.M applicant Akhtar Hussain, his mother Mst.Saran Khatoon and wife Mst.Rehana were present in the house. At that time, children of the proposed accused entered into house of the applicant for catching the birds to which applicant restrained them. Thereafter, it is stated that proposed accused entered into the house of applicant  and accused Rahib  caused danda blows to the mother of applicant  which hit her below left eye and at nose and remaining proposed accused  Himat Ali and Saboo alias Sahib caused fists and kicks blows to Mst.Saran and wife of the applicant namely Mst.Rehana. After that  applicant went  to the  police station for  lodging the F.I.R but  SHO failed to record his statement. However, the SHO referred injured persons to the hospital for treatment and medical certificate. Applicant received final medical certificate issued by Doctor Civil Hospital Kamber on 31.3.2020.   

            Doctor declared said injury as Shajah e Hashmiah, caused by hard and blunt substance.  SHO P.S Mahi Makol refused to register an F.I.R of the incident without legal justification. Thereafter, he approached learned 2^nd Additional Sessions Judge/Ex-Officio Justice of Peace, Kamber for seeking directions to SHO for registration of F.I.R against proposed accused.  Concerned Ex-Officio Justice of Peace refused to issue directions to SHO vide his order dated 29.04.2020 mainly for the following reasons:

             “Heard and perused the record.

            From the perusal of record, it appears that there the children of both the private parties were playing game together. Then, one child of proposed accused persons was available in applicant’s house and applicant’s mother said him to remove hanging  clothes wire and then fasten the same another place, while removing such wire, the wooden pipe suddenly fallen upon the applicant’s mother Mst.Saran, to which, she sustain one injury. Perhaps, applicant was annoyed upon such child and filed the instant application by managing false story. Besides, the concerned police has stated in his comments that no such incident  had taken place as alleged by the applicant in his application.

                        Whereas, the Incharge Public Redressal Cell, has stated in his report that applicant has never appeared before the Cell for redressal of his grievance.

                        In the light of reasons mentioned above, I am of the humble view that  the applicant has failed to make out his case for lodgment of the FIR against the proposed accused. For the sake of safe criminal administration of justice, the applicant is hereby required to approach before the Incharge Public Complaint Redressal Cell, Kamber-Shahdadkot @Kamber for redressal of his grievance. The Incharge Public Complaint Redressal Cell, Kamber-Shahdadkot @Kamber is hereby directed that as and when, the applicant appears alongwith an application and then pass an appropriate order within seven days after receipt of applicant’s application. However, in case of applicant not satisfies from the order of said Cell, he shall be at his liberty to file an application under Section 22-A & B Cr.P.C afresh for lodgment of the FIR. The instant application stands disposed of accordingly.  However, this order shall not prejudice to any inquiry, investigation, proceedings and trial before any forum.”

3.         Thereafter, the applicant has approached this Court for seeking direction to SHO for the registration of the case against the proposed accused.

4.         Notices were issued against the proposed accused as well as Addl. P.G.  Proposed accused appeared before this Court today. 

5.         Learned advocate for the applicant argued that since accusation disclosed commission of a cognizable offence, corroborated by medical certificate and prayed for directions to the SHO for registration of F.I.R.  Proposed accused have also been heard and they claimed false implication in this case.  

6.         Learned Addl. P.G has not supported the impugned order and submitted that apparently a cognizable offence is made out;  SHO may be directed to register F.I.R.

7.         Heard and perused the record.

8.         This is injury case.  The SHO concerned was under statutory duty u/s 154 Cr.p.C to record the information regarding commission of cognizable offence if any and to undertake investigation. In the case of Zulfiqar Ali @Dittu and  another v. The State (1991 P.Cr.L.J 1125), learned Lahore High Court has held that:

“The law requires  that a police officer should first register a case and then form an opinion whether the facts stated in the FIR are true or not.  In the present case, police officer has not acted in accordance with law; rather he has put the horse before the cart…….”

                        Above judgment of Lahore High Court has been approved by Hon’ble Supreme Court in the case of Abdul Rehman Malik v. Cynthia D.Ritchie, American National and others in Civil Petition No.2231 of 2020 vide orders  dated 30.9.2020. The learned Justice of Peace fell into error in undertaking an elaborate exercise through exhaustive analysis of allegations, thus, has transgressed far beyond his ministerial position. Impugned order is set aside as it not based upon proper appreciation of facts and law, which calls for interference by this Court.

9.         SHO concerned is directed to record the statement of the applicant/complainant U/S 154 Cr.P.C, in case from statement a cognizable offence is made out,  then to register an F.I.R and to undertake investigation in accordance with law.

            In view of above, this criminal miscellaneous application is allowed in the above terms.

JUDGE