PLJ 2024 Cr.C. (Note) 29
[Sindh High Court, Circuit Court Hyderabad]
Present: Khadim Hussain Tunio, J.
ALI HAIDER SHAH and 3 others--Applicants
versus
LEARNED ADDITIONAL SESSION JUDGE/EX-OFFICIO JUSTICE OF PEACE and 4 others--Respondents
Crl. Misc. Appln. No. S-284 of 2022, decided on 10.2 2023.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 22-A & B--Duty of Court--There are many precedents instances regarding misuse of provisions of Section 22-A & B Cr.P.C. and it is basic duty of Court that such misuse be taken care and of such application should not be lightly entertained and decided in a mechanical manner for issuing directions to police to lodge FIR, conduct investigation and prosecuting alleged accused. [Para 7] A
2010 YLR 189.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 22-A(6)(ii), 190, 200--Alternate Statutory remedies--The insertion of Section 22-A(6)(ii) was never meant to necessary allow every such application else legislature would not have used word may in sub-Section 6 which (word may) always speaks of discretion by application of mind--It is settled law that Ex Officio, Justice of Peace may refuse to issue direction regarding registration of case und may competently dismiss application under Section 22-A(6), Cr.P.C. Reminding complaining person of his alternative statutory remedies under Section 156(3), Cr.P.C. and 190, Cr.P.C., as well as he has remedy to file criminal/private complaint under Section 200, Cr.P.C--So also there are cases where complainant party may be in better position in pressing its allegations by filing criminal complaint, rather than forcing police to register criminal case and to investigate when police itself was not convinced of complainant party’s allegations being correct. [Para 10] B
PLD 2005 Lahore 470 & 2005 SCMR 951.
Duty of Justice of Peace--
---- It is duty of Justice of Peace that while scanning averments of application for registration of FIR, he must apply his judicial mind being a Senior Judicial Officer and adjudge entire set of allegations cautiously Justice of Peace is not bound to issue direction to police in each and every case to record statement of complainant if apparently no cognizable offence is made out or complaint is tainted with malice and based with ulterior motives, he can call report from SHO concerned to examine authenticity of allegations leveled against defending party Justice of Peace should also keep in his mind that aspect that any direction issued unnecessarily or in routine manners shall cause humiliation, harassment and mental agony to proposed accused and it would Take years to conclude trial of case arisen out of any F.I.R.--Appliction allowed. [Para 11] C
Mr. Mashooque Ali Mahar, Advocate for Applicants.
Mr. Ghulam Mustafa Abbasi, Advocate for Respondent No. 4.
Ms. Rameshan Oad, Assistant Advocate General Sindh.
Date of hearing: 10.2.2023.
Order
Through captioned Criminal Miscellaneous Application, the applicants have assailed the order dated 21.04.2022, passed by the learned Additional Sessions Judge/Ex-Officio Justice of Peace, Sehwan, whereby he has allowed the application of Respondent No. 4 for registration of FIR against the applicants.
2. The allegations against the applicants/proposed accused is that they caused brick blows to the father in law of complainant/ Respondent No. 4 namely Budho Khan and then brought him to the police station Ammri where he was kept falsely detained and was released after a surprise raid.
3. Learned counsel for the applicants has contended that the applicants are innocent and have been falsely implicated in the present case, that false miscellaneous application has been filed by Respondent No 4 in order to pressurize the applicants while concealing the true facts.
4. On the other hand, learned counsel for the Respondent No. 4 supported the impugned order and submitted that the order passed by learned Ex-officio Justice of Peace is legal and does not call for interference, that the applicants have committed a cognizable offence, that the father-in-law of Respondent No. 4 was abducted by the applicants, therefore, application under Section 491, Cr.P.C. was filed before the concerned Sessions Court.
Learned Assistant Advocate General for the State also supported the impugned order.
5. Heard and perused the record available before me.
6. From the perusal of record, it reveals that Respondent No. 4 has not disclosed the specific role played by any of the applicants in the commission of the offence Even the presence of the applicants at the time of said has not been established by the Respondent No. 4 who has otherwise not furnished any proof of the commission of the alleged incident besides his father-in-law’s recovery from Police Station Ammri for which the learned Sessions Judge had already issued directions for an internal inquiry against the applicants. Learned Ex-Officio Justice of Peace has passed the order in a hasty manner and the impugned order is based on surmises, presumptions and conjunctures.
7. There are many precedents instances regarding misuse of provisions of Section 22-A & B, Cr.P.C. and it is basic duty of the Court that such misuse be taken care and of such application should not be lightly entertained and decided in a mechanical manner for issuing directions to police to lodge FIR, conduct investigation and prosecuting the alleged accused. I am fortified in my view that the principle laid down in case of Imtiaz Ahmed Cheema vs. SHO PS Daharki, Ghotki (2010 YLR 189) wherein it has been observed that:
“The provisions of Section 22-A, Cr.P.C. have been misused in a number of cases. The wisdom of legislature was not that any person who in discharging of duties takes an action against the accused would be subjected to harassment by invoking provisions of Section 22-A, Cr.P.C. The Courts in mechanical manner should not allow applications under Section 22-A and B and should apply its mind as to whether the applicant has approached the Court with clean hands or it is tainted with malice Unless such practice is discharged, it would have far reaching effect on the police officials who in discharge of duties take actions against them. The law has to be interpreted in a manner that its protection extends to everyone. I am therefore, of the opinion that order of the Sessions Judge was passed in mechanical manner and the applicant approaching the Sessions Judge. As per the record reflects that it was tainted with malice.”
8. The learned single bench of this Court has taken similar view while placing reliance on aforesaid decision/verdict in case of Jamil Ahmed Butt and another us. The State through Prosecutor General, Sindh and 2 others (2014 PCr.LJ 1093).
9. The above seems to be the background which necessitated Apex Court in chalking out criterion to entertain such an application The operative part of the case of Younus Abbas (PLD 2016 SC 581), relevant to this case, is referred hereunder:
“11…….. The functions, the Ex-Officio Justice of Peace performs, are not executive, administrative or ministerial nasmuch as he does not carry out, manage or deal with things mechanically His functions as described in Clauses (i), (ii) & (iii) and of sub-section (6) of Sections 22-A, Cr.PC. are quasi judicial as he entertains applications, examines the record, hears the parties, passes orders and issues directions with due application of mind. Every lies before him demands discretion and judgment
(emphasis supplied)
10. The insertion of Section 22-A(6)(ii) was never meant to necessary allow every such application else the legislature would not have used word “may” in sub-section (6) which (word may) always speaks of discretion by application of mind. Thus, it is settled law that the Ex-Officio, Justice of Peace may refuse to issue direction regarding registration of ‘case und may competently dismiss application under Section 22-A(6), Cr.P.C. reminding the complaining person of his alternative statutory remedies under Sections 156(3), Cr.P.C. and 190, Cr.P.C., as well as he has remedy to file criminal/private complaint under Section 200, Cr.P.C. So also there are cases where complainant party may be in better position in pressing its allegations by filing criminal complaint, rather than forcing the police to register the criminal case and to investigate when the police itself was not convinced of the complainant party’s allegations being correct. In this respect reliance may be placed upon cases of Khizar Hayat and others v. Inspector General of Police (Punjab) Lahore and others (PLD 2005 Lahore 470) and Habibullah v. Political Assistant Dera Ghazi Khan and others (2005 SCMR 951)
11. It is duty of the Justice of Peace that while scanning the averments of application for registration of FIR, he must apply his judicial mind being a Senior Judicial Officer and adjudge the entire set of allegations cautiously. Justice of Peace is not bound to issue direction to police in each and every case to record the statement of complainant if apparently no cognizable offence is made out or complaint is tainted with malice and based with ulterior motives, he can call report from SHO concerned to examine the authenticity of the allegations levelled against the defending party. Justice of Peace should also keep in his mind that aspect that any direction issued unnecessarily or in routine manners shall cause humiliation, harassment and mental agony to the proposed accused and it would take years to conclude the trial of the case arisen out of any F.I.R.
12. For what has been discussed above, the instant Criminal Miscellaneous Application was allowed, impugned order dated 21.04.2022 passed by the learned Additional Sessions Judge/Ex-officio Justice of Peace Sehwan was set-aside and application filed by Respondent No. 4 under Section 22-A & 22-B, Cr PC was dismissed vide short order even dated. These are the reasons for the same.
(A.A.K.) Application allowed
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