ORDER SHEET.
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.
Cr. Misc. Application No.S- 539 of 2014.
DATE OF HEARING |
ORDER WITH SIGNATURE OF HON’BLE JUDGE |
For Katcha Peshi.
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17.07.2014.
Mr.Abdul Sattar Soomro Advocate for applicant alongwith applicant Mst.Shahnawaz Kousar.
Mr.Muhammad Daud K. Kubar Advocate for the proposed accused.
Mr.Zulifquar Ali Jatoi DPG for the State.
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ABDUL MAALIK GADDI, J- By this Cr. Misc. Application under Section 561-A, Cr. P.C, the applicant Mst.Shahnaz Kousar has impugned the order dated 09.06.2014 passed by the learned Additional Sessions Judge/Ex-officio Justice of Peace, Kandiaro 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.
2. The facts necessary for the disposal of this application are that on 1.6.2014 at about 7-pm the applicant was sitting in the house of her father, while her father and brother-in-law Abdul Hafeez were also present in the house. All of sudden the door of the house was knocked, her brother-in-law Abdul Hafeez opened the door and saw the proposed accused Zulifquar Ali and Ghulam Hussain armed with pistols so also two other unidentified persons of young age and they on the force of weapons, entered in the house. Proposed accused Zulifquar Ali fired at Shahbaz Ali son of the applicant, which missed whereas accused Ghulam Hussain fired at applicant, but she took shelter of the wall and the fire hit the cat, which was died at the spot, on their hue and cry, the proposed accused ran away.
3. It is the case of the applicant that after the incident was over, she approached to the concerned Police Station for registration of FIR against the proposed accused but the police did not pay any heed to it.
4. Thereafter, the applicant moved an Application under Section 22-A & 22-B, Cr.P.C before the learned Additional Sessions Judge/Ex-officio Justice of Peace, Kandiaro for seeking directions to the respondent No.2/SHO Police Station, Mehrabpur for registration of the FIR of the applicant against the proposed accused, who dismissed the same vide his order dated 09.06.2014, which is impugned before this Court.
5. The learned counsel for the applicant contended that the proposed accused have committed a cognizable offence, therefore, the respondent No.2/SHO was under statutory obligation to record the statement of the applicant under Section 154, Cr.P.C but he has failed. He further contended that the refusal of learned Additional Sessions Judge/Ex-officio Justice of Peace to issue the directions to the SHO concerned, is also against the law and the reason assigned that there is a dispute of civil nature between the parties, which is not a sufficient ground.
6. The learned counsel for the proposed accused vehemently opposed the prayer of the learned counsel for the applicant and supported the impugned order by contending that in fact no incident has taken place and this application has been filed only in order to harass the proposed accused, which is liable to be dismissed. During the course of arguments, he also placed on record the statement alongwith photo copies of certain documents, which are taken on record.
7. The learned DPG for the State argued that under Section 154, Cr.P.C, it is the duty of the SHO concerned to register the case against the culprit if a cognizable offence is made out. He also submitted that as per the allegation of the applicant that the proposed accused fired upon the applicant party though the same was not hit to them but inspite of that, the SHO concerned was duty bound to record the statement of the applicant in order to ascertain truth and falsehood but the SHO did not do so, therefore he did not support the impugned order.
8. I have carefully heard the arguments of the learned counsel appearing for the parties, perused the Application under Section 22-A & 22-B, Cr.P.C, report submitted by the Police, impugned order and the case law.
9. In the case of Muhammad Bashir v Station House Officer Okara Cantt and others (PLD 2007 SC 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 the 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 the Peace which had finally culminated in his order dated 12-12-2005. No exception cold, 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 stationâ€.
10. 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, did or did not constitute a cognizable offence and if it did then to direct to the concerned SHO to record an FIR without going into the veracity of the information in question. But in this case, the learned Ex-officio Justice of Peace has declined to issue directions to the SHO on the ground that there is a dispute between the parties over the matrimonial issue, which is of civil nature and the reasons assigned for such refusal, is contrary to the settled principle of law. Moreover, if there is a dispute over the matrimonial issues between the parties, inspite of that, the SHO Police Station, Mehrabpur, 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 on the force of weapons entered in her house and made direct firing upon them and it was their sheer luck that they saved their lives but inspite of these facts, the application of the applicant for registration of FIR, was declined, which was not proper.
11. Consequently, this criminal miscellaneous application is allowed and the impugned order dated 09.06.2014 passed by the learned Additional Sessions Judge, Kandiaro, is set aside with directions to SHO Police Station, Mehrabpur to record the statement of the applicant in case a cognizable offence is made out.
12. Above are the reasons of a short order dated 17.07.2014 whereby this criminal miscellaneous application was allowed.
13. Criminal Miscellaneous Application stands disposed of in the above terms.
JUDGE
Akber.