ORDER SHEET
IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Cr.Misc.A.No.363 of 2012
For
katcha peshi
ORDER
31.08.2012
Mr.Achar
Khan Gabole Advocate for the applicant.
Mr.Mohan
Lal Ladhani D.D.P.P.for the State.
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This order will dispose of Criminal
Miscellaneous Application No.S-363 of 2012.
Brief facts leading to the filing of
instant application are that an application under section 22-A (6) (I) Cr.P.C.
was moved by one Muhammad Haneef Gabole in the Court of learned Additional
Sessions Judge/Ex-Officio Justice of Peace, Naushero Feroze alleging therein
that his brother Abdul Rasheed is serving as Operator in F.W.O. He had received
salary of three months and was coming from Saeedabad to the Ghotki. On
09.6.2012 at
Mr.Achar Khan Gabole learned advocate
for the applicant has contended that SHO was bound to register FIR u/s 154
Cr.P.C. and he has no power to refuse the same if from the information
cognizable offence is made out. It is immaterial whether information is false
or correct. He has argued that after snatching the money from the brother of
the applicant case under section 13(d) AO was registered and it was the
malafide on the part of the SHO. He has further submitted that learned
Additional Sessions Judge/Justice of Peace Naushero Feroze has not exercised
jurisdiction judiciously and touched the minor details and deeper appreciation at
initial stage was not warranted in law. In support of his contention he has
relied upon the case law as reported in the case of Mst.Bhaitan vs. The State
and 3 others (PLD 2005
Mr.Mohan Lal Ladhani learned D.D.P.P.
for the State supported the order passed by the learned Additional Sessions
Judge/Justice of Peace and stated that false application was moved by the
applicant against the SHO, as SHO had registered a case 13(d) AO against the
brother of the applicant. He prayed for dismissal of application.
In the case of Muhammad Bashir vs.SHO
Okara Cantt and others reported in PLD 2007 Supreme Court 539, the Honourbale Supreme
Court has been pleased to observe as under:-
“The scheme of law which becomes
apparent from a bare perusal of these provisions is that whenever an Officer
Incharge of a Police Station receives some information about the commission of
an offence, he is expected first to find out whether the offence disclosed fell
into the category of cognizable offences or was one which was non-cognizable.
And once he was through with this exercise then the word “SHALL’ appearing in the said provisions of section 154, Cr.P.C. would take
over which obliged, the S.H.O. thereafter to reduce the said information to
writing in the First Information Report Register as, what is called by Chapter
XXIV of the Police Rules of 1934, a F.I.R. if the offence disclosed was
cognizable or else to merely record the same in the Station Diary as mentioned
by section 155(1) of the Cr.P.C. and rule 24.3 of the said Rules and refer the
informant to the competent Magistrate if the offence be non-cognizable. As has
been mentioned above sections 154 and 155 of the Cr.P.C. are the only two
provisions in the said Code which talk about the manner in which an information
received by a S.H.O. relating to the commission of an offence was to be
treated.
It may be
reiterated and even emphasized that there was no provision in any law,
including the said section 154 or 155 of the Cr.P.C. which authorized an
Officer Incharge of a Police Station to hold any enquiry to assess the
correctness or the falsity of the information received by him before complying
with the command of the said provisions which obliged him to reduce the same
into writing irrespective of the fact whether such an information was true or
otherwise.”
In my considered view, SHO P.S.Mithiani
was required and bound to register the FIR of applicant Muhammad Haneef under
section 154 Cr.P.C. SHO had absolutely no power to refuse to register the case
if from the information/statement a cognizable offence was made out. It is
immaterial whether the information is false or correct but the condition precedent
for recording the FIR u/s 154 Cr.P.C. book is that information must disclose an
offence and that too a cognizable one. No doubt, after registration of the FIR
investigation process starts and it is for the investigation officer to
ascertain whether the information is true or false under the law. If information
is false then police officer is empowered to register a case against the
complainant under the relevant provisions of PPC. If information discloses an
offence which is not cognizable by the police even then SHO is required and
bound u/s 155 Cr.P.C. to record it in a station diary of the police station and
refer the informant to the Magistrate having territorial jurisdiction. In no
circumstance, police officer SHO can refuse to enter the information in Section
154 Cr.P.C. book or in station diary of the police station as the case may be except
on one condition that from information no offence at all is made out. From the
perusal of the order passed by the learned Additional Sessions Judge/Ex-Officio
of Justice of Peace it transpires that matter has been scrutinized minutely
which is not the requirement of the law. Impugned order of Justice of Peace showed
that applicant’s application was turned down mainly on the ground that case was
registered against the brother of applicant u/s 13(d) A.O. by the S.H.O. and applicant
intended to lodge FIR against police personnel with malafide intention to
harass SHO from discharging his lawful duty. Whether there was malafide on the
part of applicant for lodging FIR or bonafide intention, it can only be
determined after recording statement of applicant. Learned Additional Sessions
Judge was only required to see as to why SHO had failed to perform his
statutory duty. Deeper appreciation at the time of registration of the FIR was
not required as such order passed by the learned Additional Sessions Judge
dated 18.6.2012 is not sustainable under the law and the same is set aside. SHO
is directed to register F.I.R. if from the statement of the applicant cognizable
offence is made out.
Applications stands accordingly
disposed of.
JUDGE