Cr.Misc.Appln.No. 227 of 2012.
For Katcha Peshi.
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14.06.2012. Mr.Aijaz Ali Maitlo advocate for the applicant.
Mr. Liaquat Ali Maitlo and Mr.Riaz Ali Maitlo advocates for the proposed accused.
Mr.Zulifquar Ali Jatoi DPG.
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NAIMATULLAH PHULPOTO, J:- By this Criminal Miscellaneous Application under Section 561-A, Cr.P.C, the applicant Pervez Ali Maitlo has impugned the Order dated 18.04.2012 passed by the learned IIIrd Additional Sessions Judge/Ex-officio Justice of Peace, Khairpur Mir’s whereby the Application under Section 22-A & 22-B, Cr.P.C filed by the applicant for registration of FIR against the proposed accused, was dismissed.
Brief facts leading to the filing of the instant application are that there is dispute between the applicant and proposed accused over the sale of Motorcylces. It is alleged that the proposed accused used to run Showroom at Kharipur. The applicant approached the proposed accused for the recovery of arrears of Motorcycles, on which the applicant was kept on false hopes and finally the threats of dire consequence were issued to the applicant, therefore he moved an Application to the SSP Khairpur, who forwarded the application of the applicant against the proposed accused to the concerned SHO but without any result.
On 06.04.2012 the applicant, his brother Javed Ali and relative Qurban Ali were going to village Rafique Mahessar on a Motorcycle, when they reached near Khambhra, where they saw proposed accused Muhammad Bux alias Digloo Maitloo armed with pistol alongwith two other unknown persons and the applicant was forcibly stopped and he was snatched cash of Rs.8,500/-, wring of gold and Mobile Phone by the proposed accused. It is further alleged that the proposed accused attempted to commit murder of the applicant but due to the intervention of the PWs, the proposed accused went away while issuing threats that the applicant would not be spared. Thereafter, applicant went to Respondent No.1 SHO Police Station Ahmedpur for lodging FIR against the proposed accused but he was kept on false hopes and ultimately the Respondent No.1 refused to register the FIR against the proposed accused.
Thereafter, applicant moved an Application to the learned IIIrd Additional Sessions Judge/Ex.officio Justice of Peace for seeking directions to the Respondent No.1 for registration of the FIR against the proposed accused, who dismissed the same vide his Order dated 18.04.2012 for the following reasons:-
“The applicant has himself admitted the dealing with proposed accused, it appears that the dispute between the parties is over transaction of the motorcycle and applicant has himself admitted in the harassment petition that amount of Rs.84,000/- is due against him, therefore, it appears that application has been filed with malafide intention, therefore, I see no merits in the application, which is hereby dismissed accordingly”.
The learned counsel for the applicant contended that the proposed accused has committed a cognizable offence and the Respondent No.1 SHO was under statutory obligation to record the FIR u/s 154, Cr.P.C but he has failed. It is further argued that refusal of learned IIIrd Additional Sessions Judge to issue the directions to the SHO is also against the law and the reason assigned that there is a dispute over motorcycle between the parties, is not sufficient ground.
The learned DPG appearing for the State assisted by learned Advocate for proposed accused and argued that the dispute between the parties is over the sale of motorcycle, as admitted by the applicant himself, therefore he had an alternate remedy to file a direct complaint against the proposed accused or approach Civil Court and this constitution petition is not maintainable as disputed question of fact cannot be resolved in a constitutional jurisdiction.
I have carefully heard the arguments of the learned counsel appearing for the parties, perused application under Section 22-A & 22-B, Cr.P.C, report of the police, impugned Order and the case law.
In the case of Muhammad Bashir v Station House Officer, Okara Cantt and others (PLD 2007 Supreme Court 539), the Honourable Supreme Court has been pleased to observe as under:-
“40. Therefore, in our opinion, the only jurisdiction which could be exercised by an Ex-officio Justice of the Peace under section 22-A(6), Cr.P.C, was to examine whether the information disclosed by the applicant did or did not constitute a cognizable offence and if it did then to direct the concerned S.H.O to record an F.I.R, without going into the veracity of the information in question, and no more. Offering any other interpretation to the provisions in question would be doing violence to the entire scheme of the Cr.P.C, which could not be permitted.
41. We are conscious of the fact that in pursuance of petitions filed under Article 199 of the Constitution, the High Courts, at times, did refuse to issue writs directing recording of F.I.Rs. Suffice it to say that the exercise of discretion under the said jurisdiction was not dependent only on an illegality committed by a competent authority but was also controlled by some other important consideration such as the seeker of a writ being an aggrieved person; availability of alternative remedies such as filing of a complaint etc, in criminal matters and the applicant being qualified, in equity, for the grant of the sought relief. The powers of the Ex-officio Justice of Peace under section 22-A(6) of the Cr.P.C, could, therefore, not be equated with the constitutional jurisdiction vesting in a High Court.
42. Having thus surveyed and examined all the relevant provisions of the law regulating the subject, we find and hold that the initial act of the Officer Incharge of Police Station Cantt. Of District Okara, refusing to record, in the register of F.I.Rs., the information conveyed to him by Bashir petitioner which information did disclose the commission of a cognizable offence, was illegal. And equally invalid was the exercise undertaken by the Ex-officio Justice of Peace which had finally culminated in his order dated 12.12.2005. No exception could, however, be taken to the action of the concerned S.H.O, who finally did what the law commanded him to do i.e. recording of F.I.R No.16 dated 25-1-2006 at his police station”.
In view of the above legal position, I am clear in my mind to observe that the learned Ex-officio Justice of Peace under Section 22-A(6), Cr.P.C was to examine whether the information disclosed by the applicant Pervez Ali did or did not constitute a cognizable offence and if it did then to direct the concerned S.H.O to record an FIR without going into the veracity of the information in question. But in this case, learned IIIrd Additional Sessions Judge/Ex.officio Justice of Peace has declined to issue directions to the SHO on the ground that there is dispute between the parties over the transaction of motorcycle, and the reasons assigned for such refusal are contrary to the settled principle of law. Moreover, if there is dispute over the money transaction between the parties, inspite of that SHO P.S Ahmedpur was legally bound to register the FIR in case a cognizable offence is made out. In the case in hand, the applicant has categorically stated that the proposed accused has snatched cash, mobile and other articles from him. S.H.O refused to register F.I.R thereafter applicant approached to Superintendent of Police, Khairpur but without any result.
Consequently, this criminal miscellaneous application is allowed and the impugned order dated 18.04.2012 passed by the learned IIIrd Additional Sessions Judge/Ex-officio Justice of Peace, Khairpur, is set aside with the directions to the Respondent No.1 SHO Police Station, Ahmedpur to record the statement of the applicant in case a cognizable offence is made out.
Cr.Misc.Application stands disposed of in the above terms.
JUDGE
Akber.