ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

C. P. No.D-1151 of 2014.

DATE OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE.

19.3.2015.

PRESENT:

Mr. Justice Naimatullah Phulpoto,

Mr. Justice Mohammad Junaid Ghaffar,

For Katcha Peshi.

Mr. Aijaz Ali Shah, advocate for the petitioner.

Mr. Khadim Hussain Khooharo, Deputy Prosecutor General, alongwith SIP Altaf Hussain Bhayo, SHO PS Karan Sharif and ASI Moula Bux Hakro of PS Staurt Ganj, Shikarpur.

Mr. Munawar Ali Abbasi, Asst. A. G.

O R D E R.

NAIMATULLAH PHULPOTO, J.- Through the instant Constitutional Petition, Petitioner Mst.Kounjan Shar has prayed for directions to the S.H.O of Police Station Lakhi Ghulam Shah for registration of F.I.R against Altaf Hussain Bhayo, SHO PS Jahan Wah, Alan Khan Abbasi, Incharge CIA Shikarpur, Sawan Khan Abbasi, ASI CIA, Shikarpur, Mohammad Bux Majidano, SHO PS Staurt Ganj, WHC Mehrab Hakro, PCs Ahsan Ahmed Mangi and Nazir Ahmed of P.S Staurt Ganj.

2. Brief facts leading to the filing of the petition are that on 04.8.2014, at 4.00 p.m, S.H.O PS Staurt Ganj, Shikarpur, alongwith his staff raided the house of the petitioner and forcibly took away brothers of the petitioner, namely, Humair and Raja. Thereafter, it is alleged that on 08.5.2014 Humair returned home and disclosed that near Lakhi Ghulam shah police officials fired upon Raja Shar and committed his murder. Petitioner approached the S.H.O PS Lakhi Ghulam Shah for registration of the F.I.R, but he refused to register the same. Thereafter, petitioner approached the learned Sessions Judge/Ex-officio Justice of Peace, Shikarpur, for seeking the directions for registration of her F.I.R, but application of the petitioner was declined vide order dated 25.8.2014.

3. Notices were issued to the respondents as well as learned Addl. A.G and learned D.P.G. Comments have been filed by respondents No.1, 2, 4, 5, 6 & 7.

4. Mr. Aijaz Ali Shah, learned advocate for the petitioner argued that petitioner had approached S.H.O PS Lakhi Ghulam Shah for registration of the F.I.R, but the S.H.O refused to register the case as petitioner intended to lodge F.I.R against the police officials. It is further contended petitioner approached the learned Sessions Judge / Ex-Officio Justice of Peace, Shikarpur for seeking directions to the concerned S.H.O for lodging the F.I.R, but such application was also dismissed. Lastly, it is submitted that S.H.O is bound to register the F.I.R in the cognizable offence. In support of his contentions, reliance has been placed on the case of Muhammad Bashir v. Station House Officer, Okara Cantt and others (PLD 2007 SC 539).

5. Learned A.A.G and D.P.G opposed the petition, mainly on the ground that deceased was a hardened criminal and he was involved in a number of heinous offences and F.I.R regarding his death has been registered by the police on behalf of the State vide crime No.72/2014 for offences under Sections 324, 353, 402, 399, 148, 149, PPC at Police Station Lakhi Ghulam Shah.

6. After hearing the learned Counsel for the parties, we have gone through the above-cited judgment of Hon’ble Supreme Court, in which it is held as under :-

“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.”

7. Legal position is clear that provisions of Section 154, Cr.P.C command the S.H.O to lodge an F.I.R, if information conveyed to him discloses commission a cognizable offence irrespective of information being correct or incorrect. The provisions of subsection (6) of Section 22-A, Cr.P.C confer no additional powers on an Ex-officio Justice of Peace to hold any enquiry to assess the credibility of such information. Learned Ex-officio Justice of Peace has deeply examined the matter, which is not the requirement of the law. Relevant portion of the order dated 25.8.2014 passed by the learned Sessions Judge/Ex-officio Justice of Peace, Shikarpur is reproduced as under :-

“Adverting to merits of the application in hand no prudent mind would believe that two brothers along with uncle were taken into custody from their own house out of which one brother is killed and another was let off by the respondents to tell their ordeal to inmates of the house. Furthermore, application itself is based upon hearsay. In these circumstances it is clear on the face of record that incident has not taken place at least in the form narrated by the applicant as such the applicant has not approached this court with clean hands. As the F.I.R of the incident is registered and trial court will be in better position to look into the correctness of encounter. I, therefore, can do nothing but to dismiss the application which is hereby dismissed as such.”

8. In the above-stated circumstances, while relying upon the above-cited authority, we hold that order dated 25.8.2014 passed by learned Sessions Judge/Ex-officio Justice of Peace, Shikarpur is not sustainable under the law, as such, we direct the S.H.O P.S Lakhi Ghulam Shah to record the statement of the petitioner and lodge an F.I.R, if information conveyed to him discloses commission of the cognizable offence.

9. Petition stands disposed of in the above terms.

JUDGE

Qazi Tahir/*